Law Outlines Evidence Outlines
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
The following is a more accessible plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Expert Witness: 702, 703, 705
FRE 701: Lay opinions
Non-expert testimony must be limited by the following:
rationally based on W’s perceptions
helpful to clearly understand the W’s testimony or to determining a fact in issue; and
not based on scientific, technical, or other specialized knowledge within the scope of 702
FRE 702: Conditions for expert’s ability to testify
Their scientific/technical/medical/specialized knowledge will help trier of fact to understand evidence/determine a fact in issue
Intentionally broad
Because of other evidentiary checks – in rules, jury’s ability to judge credibility, cross-X
Courts reluctant to admit:
Lie detector test results
Problems with eyewitness identification
Astrology/palm reading
Elements
Trier of Fact must be ignorant to substance of testimony
Specialized knowledge must be gained by experience
No requirement for formal education
Based on “knowledge, skill, experience, or training” as well as education
Testimony based on sufficient facts/data
Testimony produced using reliable principles/methods
Expert has reliably applied the principles and methods to the facts of the case
Practice tips
If opposing party tries to stipulate to level of experience, refuse – because it is more convincing if jury is able to hear why the person is an expert
Attorney should consider several things before deciding on using expert
Experts often cost money
Jurors may reject expert straight out, if the specialized evidence is of a seemingly bizarre nature
The thought: “if the party must resort to this type of unreliable evidence, the party’s case must be a wak one.
The nature of scientific evidence increases the possibility that unrealiable evidence will be exposed on cross-X
Whether the person is an expert is decided by Judge pursuant to 104(a).
403 Concern
because expert testimony can be so powerful, there is a high danger of misleading jury
Summary Witness
If just reciting facts (human tape recorder): lay witness
If drawing conclusions from those facts: maybe expert
Blurred line
Cases re: scientific evidence
Frye (1923)
D sought to introduce results of early type of lie detection device (technology not well recognized yet, perhaps still in experimental stage rather than demonstrable stage)
General Acceptance test: “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
Criticism: prevents use of scientific evidence based on emerging disciplines/cross-disciplinary studies
Daubert v Merrel Dow Pharmaceuticals (1994)
Facts: child born with serious birth defects, alleged cause is mother’s ingestion of prescription drug. R submits Dr as expert, who reviewed all literature/studies of the drug and found no evidence that it causes birth defects. P retaliates with 8 experts, saying that despite the literature already produced, drug can cause birth defects (unpublished studies).
Held:
Frye test is superseded by the federal rules of evidence (1975), which include no general acceptance rule… FRE 702 is much broader. “must rest on a reliable foundation and be relevant to the task at hand”
“no common law of evidence remains”
Rule
702’s “scientific” implies a grouding in the methods and procedures of science. And “knowledge” connotes more than subjective belief or unsupported speculation. And “helpfulness” standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.
Factors for the judge to consider (flexible)
Whether assetion can be tested
Whether assertion has been published/submitted for peer review
Known/potential rate of error
Existence and maintenance of standards controlling the technique’’s operation
General acceptance (not required, but permitted)
Kumho Tire Company v. Carmichael (1999)
Facts: Tire blows out and passenger dies. Sues manufacturer. Tire failure expert used certain observations that R disputed, and disagreed with expert’s methodology. “technical or otherwise specialized knowledge”
Held: Supreme Court deferred to trial court’s rejection to admit. TC’s reasoning was that expert said that his inspection of the tire led to the conclusion that a defect caused the tire to explode because he did not see evidence of other causes.
Rule
Daubert “relelvant and reliable” standard applies to all 702 types of evidence, not just scientific
Daubert factors neither necessarily or exclusively apply to all experts in every case, but serve as a flexible guide. Rather than being “Daubert criteria,” these...
Buy the full version of these notes or essay plans and more in our Evidence Outlines.
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started