Navigating Opinion Evidence in Court: A Practical Guide

1. CHAP. 9 :OPINION EVIDENCE P. JANICKE 2006

2. OPINIONS ARE GENERALLY INADMISSIBLE • RULE 602 REQUIRES “KNOWLEDGE” • SINCE KNOWLEDGE IS ILL-DEFINED CONCEPT, THE LINE BETWEEN KNOWLEDGE AND OPINION IS ILL DEFINED Chap. 9 -- Opinion Evidence

3. THE OBJECTION : • “OBJECTION, YOUR HONOR; IT CALLS FOR AN OPINION” • IF JUDGE AGREES, THIS SETS THE STAGE FOR ANALYSIS • SOME KINDS OF OPINIONS ARE ADMISSIBLE Chap. 9 -- Opinion Evidence

4. OPINIONS OF NON-EXPERTSRULE 701 • ALLOWED ONLY IF : • RATIONALLY BASED, AND • ON A PHYSICAL PERCEPTION BY THE WITNESS, AND • HELPFUL TO THE TRIER OF FACT Chap. 9 -- Opinion Evidence

5. “HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE IMPRESSION • IF STATING A FEW FACTS GIVES THE PICTURE, THE OPINION IS DISALLOWED Chap. 9 -- Opinion Evidence

6. EXAMPLES OF ADMISSIBLE OPINIONS • HE WAS DRUNK • HE WAS UPSET • SHE WAS NERVOUS • SHE WAS ANGRY ALL REQUIRE FOUNDATION OF PHYSICAL PERCEPTION Chap. 9 -- Opinion Evidence

7. FURTHER EXAMPLES(TRADITIONALLY ALLOWED) • INSANITY • HANDWRITING BOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION Chap. 9 -- Opinion Evidence

8. EXPERT OPINIONS(RULE 702) • SPECIAL KNOWLEDGE OR EXPERIENCE • SCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC. • CRIME DETECTION IS A CONTROVERSIAL AREA Chap. 9 -- Opinion Evidence

9. EXPERT’S METHODOLOGY MUST BE RELIABLE • CHECKED INITIALLY BY THE JUDGE BEFORE TRIAL • IF JUDGE FINDS RELIABLE METHODOLOGY, EVIDENCE IS ADMITTED FOR JURY EVALUATION • JURY MAY FIND METHODOLOGY WAS UNRELIABLE AND GIVE NO WEIGHT Chap. 9 -- Opinion Evidence

10. JUDGE AS GATEKEEPER • IF JUDGE FINDS METHODOLOGY RELIABLE: JUDGE IS NOT A FACTFINDER • SHE IS A SCREEN ON WHAT GETS THROUGH TO THE JURY • IF JUDGE FINDS METHODOLOGY UNRELIABLE, THE FINDING IS FINAL Chap. 9 -- Opinion Evidence

11. SAME ROLE AS[NEARLY] ALWAYS • JUDGE IS A SCREEN FOR EVIDENCE • POSITIVE FINDING ISN’T DETERMINATIVE • EXCEPTION: JUDICIAL NOTICE IN A CIVIL CASE • NEGATIVE FINDING SHUTS OFF THE EVIDENCE Chap. 9 -- Opinion Evidence

12. OPINION ON AN ULTIMATE FACT [R. 704] • GENERALLY ALLOWED • EXCEPTION : STATE OF MIND OF CRIMINAL D. • USUALLY SANITY IS INVOLVED • EXPERT MUST STAY ONE-STEP-BACK Chap. 9 -- Opinion Evidence

13. COURT-APPOINTED EXPERT(RULE 706) • GOOD IN THEORY • LITIGATORS CRINGE! Chap. 9 -- Opinion Evidence

14. STIPULATING EXPERTISE • OFTEN VOLUNTEERED • SELDOM ACCEPTED • NO DRAMA • NO FEAR OF OBJECTION Chap. 9 -- Opinion Evidence

15. Chap. 9 -- Opinion Evidence