LAY OPINION EVIDENCE

Rule 701. Opinion Testimony by Lay Witness

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are

Rationally based on the perception of the witness, and

Helpful to a clear understanding of the witness’s testimony or the determination of a fact at issue, and

Not based on scientific, technical, or other specialized knowledge w/in the scope of 702.

Under Rule 701, a witness can give own general, non-technical opinions or impressions about what happened in the case, but only about certain matters that he or she actually witnessed or perceived first-hand.

Proper scope of lay opinion, includes perceptions like these:

Speed & other measurements (ie 90mph)

Physical state such as intoxication or injury (ie Δ was drunk)

Personal emotions of others (Δ was mad & then went crazy)

Sensory descriptions ( so hot I was sweating, must be over 100)

Value of ones OWN land (my house is worth)

Sanity of the testator (he was nuts)

U.S. v. Yazzie

Case abt lay testimony that minor looked 16

Weren’t allowed testify abt age but only physical appearance and behavior

Sup Ct. reversed and said shld have been allowed cause it helped explain the understanding of the witness’s descriptive testimony & in determining a critical fact at issue.

How the hell else can you describe how/why someone looks a certain age besides saying looked THAT age.

Gorby v. Schneider Tank Lines

Witness not allowed to testify that “semi driver had done everything he could to avoid the accident”

Cause was not in truck and had no way know what driver had tried to do

The opinions/inferences must be based on 1^st hand knowledge or observations

Cant be too speculative or conclusory

The conclusion is to be the juries

Opinion on Ultimate Issue (704)

EXPERT EVIDENCE

An expert who is qualified in a certain field of expertise is allowed to give her expert opinion on a particular issue in a case involving that area of expertise

Unlike lay opinion testimony, personal knowledge of the underlying incident is not required

Expert opinion is allowed when scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining the fact in issue

The attorney MUST set forth the expert’s qualifications before the court can accept them as an expert.

Rule 702. Expert Opinions

Qualifications

Can be qualified as an expert by knowledge, skill, experience, training, or education

Can testify in form of opinion if

The testimony is based on sufficient fact or data;

The testimony is the product of reliable principles and methods, and

The witness has applied the principles & methods reliably to the facts of the case

Even if qualified in one area, it doesn’t mean they are qualified in another even if they are related

Polston v. Boomershine

Offered expert testimony was Burnsthein whose was to testify about the existence of enhanced injuries from a car crash

He was a mechanical engineer w/ experience as automobile accident investigator, experienced in determining how certain injuries were caused in a crash, and specifically what injuries were caused by a vehicle’s lack of crashworthiness.

But he testified about the extent of plaintiff’s injuries & the crashworthiness.

The ct ended up limiting his testimony to that of the crashworthiness cause wasn’t qualified to testify about medical probability (this determination wasn’t manifestly erroneous)

The expert testimony must also be “helpful to the jury” which means the opinion has to give the jury more than a guess as to what happened- it must be an educated guess based on some key facts or expert analysis beyond the jury’s own knowledge.

Reliability of Expert Testimony

Frye v. U.S

Used to be that it had to have gained “general acceptance” in the relevant scientific community

This is now only a factor under the actual test which is in Daubert

Daubert v. Merrell Dow

Half of the states follow Daubert, at least 17 States decline to use it. Daubert is only mandatory authority in federal cts.) Petitioners are minor children who were born with serious birth defects. Petitioners offered expert testimony that was not “generally accepted” in the field b/c it was “new” science.

Holding: Frye is overruled by FRE 702 for federal courts, new principles to be used.

Rules: Trial Judge must determine at the outset, pursuant to FRE 104(a) whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Ct. states that the process is a “flexible one” and that the judge should consider FRE 403. Ct. offers the following Factors to determine if the scientific evidence is admissible:

Has the technique or theory been tested (testable / falsifiable) in actual field conditions?

Has the technique been subject to peer review and publication? Submission to scrutiny increases the likelihood that substantive flaws will already have been detected;

What is the known or potential rate of error in the theory or technique?

Do standards exist for the control of the technique or theory’s operation?

Has the technique/theory been generally accepted w/i the relevant scientific community?

GE v. Joiner

The methods and testing used in the expert analysis must be sufficient related to and similar to the issues at hand

If injecting mice w/ 10 times the concentration of what trying to say would cause same reaction in a human the testing is not closely enough related/connected to be sufficient

Kumho Tire v. Carmichael

Daubert is not restricted to traditional “scientific fields of study” and can be just as applicable to engineering, and everyday work fields like tire testing.

Since the Daubert factors are flexible and may not apply here there are other...

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