Chapter 9 Lay and Expert Opinion Testimony I. LAY OPINION TESTIMONY: a. 701: Opinion Testimony by Lay Witnesses—If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. b. LAY OPINION: i. Elements: 1. Rationally based on perception [see; smell; taste; touch; hear] 2. Helpful to jury a. To a clear understanding of witness’ testimony b. A fact at issue 3. NOT scientific, technical or based on specialized knowledge ii. Categories Routinely Accepted—Opinions Permissible 1. Estimates of speed; distance; temperature 2. Physical characteristics of people [tall; short; heavy; frail; age] 3. Identification of person [robber looked like G] 4. Value of property/services 5. Common odors [rotten eggs] 6. Emotional/mental state of people familiar to witness 7. Opinions concerning common behavior [intoxication] iii. RULE: MUST be based on personal knowledge; can NOT be based on speculation or guess work c. Problems: i. 9-1: H slipped and fell on some tiles, G, an eyewitness to H’s fall testified ‘in my opinion, those tiles were very slippery’ 1. Must be helpful to break down for jurythis type of testimony is questionable [have lay opinion say tiles slippery]…don’t know why witness said this or under what conditions tiles were slippery and whether witness had personal knowledge of slipperiness of tiles [basis of opinion…does he have experience with THESE tiles] = AT MINIMUM, must lay more foundation that witness has enough knowledge to rationally base an opinion 2. What if he left out ‘in my opinion’NOT a question of form over substance…court can still strike as opinion even if opinion is never mentioned ii. 9-2: P sues D after minor car accident, P claimed D negligently backed her car while in parking lot…D denied charge and asserted at trial that honked her horn as she backed up…B wishes to testify ‘If D had honked the horn, I most certainly would have moved by car’Speculation = when witness testifies what would have happened if…sign to object [witnesses can NOT testify to something that is speculative] = NOT rationally based on witness’ perception [no need to objection on lay opinion, can rely on speculation] iii. 9-3: Small plane crashed onto busy highway, injuring the passengers of plane and occupants of 2 cars, A was eyewitness…at trial, A testified on direct: 1. A, in your opinion, how fast was car traveling when hit by planeif car is traveling within normal speed, and most adults are presumed to have specific knowledge as to speed [admissible] 2. How fast was plane traveling just before it collided with carMOST people can NOT estimate air speed, would require expert opinion testimony or evidence from cockpit [NOT admissible] 3. You mentioned smell after plane crash, what was smell…smelled like burning high-grade oilNOT likely that would be able to differentiate between high grade oil…know that smells like burning oil 4. Testified pilot wobbled out…describe pilot a. I saw him stumbleallowed, most people commonly know what a stumble is [conveys to jury something helpful and rationally based on opinion]
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b. It smelled like he had been drinking alcoholtype of smell that is in the common experience of a lay witness [must be close enough to have smelled] c. I’d estimate he was 6’2” and 195 lbsheight and weight are commonly accepted d. He looked like he’d been without sleep for a while; he appeared disorientedlooked like he had been without sleep = completely speculative; NOT nationally based on witness’ perception e. By the way he carried himself, it appeared as if he had a very large egoNOT allowed = witness could give fact-based description, but NOT this iv. 9-4: Detective KG was testifying in a homicide trial about her interview with the D, K…defense claimed mistaken identity in its opening statement 1. What happened when you talked with D…D said ‘it’s a shame that a person was killed’ then he winked at mesensory perception…most likely comes in as proper lay opinion testimony [most people can tell difference between winking and something in person’s eye 2. What did you take this to meanit is NOT relevant to what detective took it to mean, UNLESS it is true what she took it to decide…opinion as to what D must have meant by it is speculative [irrelevant what witness though, UNLESS bears upon what D meant to convey and that is speculative] 3. I did not see his face, but the guy was wearing Kouros cologne [established that bottle of Kouros found in backpack D had at time of arrest]common person is NOT familiar with this smell…must lay foundation [are you familiar with smell of Kouros cologne = establish that rationally based on witness’ perception (familiar and can recognize)] v. 9-5: F slipped and fell on a banana peel in Kal’s General Store…M, testifying as an eyewitness, states, ‘Yep, F slipped on a banana peel that looked like it had been on the floor for hours…F fell like a sack of bricks’closer lay opinion testimony comes to issue that jury is to decide = less likely that lay opinion will be admissible [lay opinion evidence is NOT supposed to testify on ultimate issue of fact, if issue is whether banana had not been picked up in timely manner = would be allowing witness to decide case]…witness should just describe the appearance of the peel vi. 9-6: In a convenience store robbery gone awry, the perpetrator, T shot and killed the owner of the store…T is prosecuted for murder and interposes an insanity defense…in rebuttal, the state called L, a close friend to T’s, who had spent several hours with T immediately prior to the robbery attempt, prosecutors asks L for her opinion on whether T appeared sane before the robbery… 1. This kind of opinion testimony is permitted in many courtsallow lay opinion as to whether they were sane = normal might be better work than sane [normal and sane is vague…could be objection of vagueness of term]…courts will allow someone with sufficient familiarity to testify 2. Can eyewitness to robbery, who had never before met either T or L give her opinion about whether T appeared to be sane at the time of the robberyPROBLEM: if don’t know them, how can you say that they are sane?? [predicated on sufficient showing of familiarity to give lay opinion] vii. 9-7: C’s partner, S, testified about a K between C and a 3 rd party: ‘Now, I’m no handwriting expert, but I’ve seen C sign his name at least 50 times and the signature on that document is definitely his’ 1. Opponent objects to testimonyas long as rationally based on perception + helpful = admissible [seeing signature 50X gives basis for saying it was his…jury can decide if this is enough to know handwriting] 2. Would the same ruling occur if S had only observed C’s signature on 10 prior occasions10X might be enough, probably important to let jury know what the witness’ basis is [may give enough information, jury can weigh importance…if they don’t think it is enough they won’t weigh it as much] EXPERT OPINION: a. 702: Testimony by Experts—If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of
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reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 703: Basis of Opinion Testimony by Experts—the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. 704: Opinion on Ultimate Issue i. (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. ii. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. 705: Disclosure of Facts or Data Underlying Expert Opinion—The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. 706: Court-Appointed Experts: i. (a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. ii. (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. iii. (c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. iv. (d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection. EXPERT OPINION: i. Elements: 1. Helpful 2. Sufficient Basis 3. Product of reliable methods 4. Relevant ii. UNLIKE fact witnesses, can give opinion on ultimate issue of fact in case without ANY personal knowledge 1. Can give their opinion based on hypothetical questions 2. Their opinion can be based on testimony in court or out of court facts as well 3. Basis for their opinion can rely on inadmissible evidence [E.g.—hearsay evidence] iii. 702—General RULE: Expert is someone who through knowledge = qualified through special knowledge, training, experience, or skill = require expert opinion that will be helpful to jury [auto mechanic, gardeners, race car drivers, and surfers]
1. Limitations: a. Testimony MUST be helpful to jury [based on sufficient facts or data] b. Reliable [based on reliable principle or methods] c. Limited to subject matter of their expertise d. Relevant to issue in dispute 2. Steps: judge performs gate-keeping function a. Qualifying expert as an expert i. Out of presence of juryask if going to challenge expert [person putting on expert would elicit those things that qualify as an expert = training, skill, experience, background] ii. Person opposing witness can conduct cross-examination voir dire iii. Judge holds if witness can or can NOT testify as expert b. If can qualify as expert, repeat in front of jury [if NOT = will NO longer be relevant] iv. 703—Basis for expert opinion: expert can listen to others testify; facts/data learned prior to trial [physician examining after surgery]; or asked based on hypothetical facts [NOT known in court room and NOT examined prior to trial] 1. Can base on evidence NOT admissible at trial 2. 2000 Amendment—if based on inadmissible evidence, rule prohibits disclosure of basis of opinion UNLESS court determines that probative value to jury in assessing the expert opinion substantially outweighs the danger of jury analyzing this inadmissible evidence [Reverse 403] v. 704—Facts at issue: recognizes that experts can give testimony to decide ultimate issue of fact and jury can decide to discard this information 1. Exception: Expert witnesses testifying about mental state of criminal D, can NOT give opinion as to whether D had mental state required as an element of crime a. Can NOT testify as to whether D was or was NOT willful; can NOT say whether D was or was NOT legally insane b. Insanity = legal standard, NOT medical standarddoctor can testify as to medical state of D c. Does NOT limit lay opinion testimony [E.g.—L can testify that T seemed sane, assuming that have enough information and is rationally based on perception and would be helpful to jury] 2. Cal. § 870—sanity is something that can be testified to by (1) intimate acquaintance or (2) expert witness vi. 705—Expert qualified: can get opinion first and do NOT have to get information about how he came to opinion [E.g.—he has bipolar disorder, then dismissed…in civil cases = discovery very important to know what to cross examine on] vii. 706—court on its own can obtain expert opinions [NOT just lawyers] = typically in competency hearings g. Problems: i. 9-8: Dr. W, a chiropractic physician, is asked to testify in workers’ compensation action…is asked to give opinion about prognosis regarding D’s back injury…which is relevant to qualifying as expert: 1. Dr. has worked as chiropractor for 11 years and treated 800 patientsRelevant = goes to experience 2. Dr. has published XRelevant = shows that he has written expert articles accepted by others in his field 3. Dr. has testified on 17 occasions, once for D and 16 for PRelevant = fact that qualified in 17 trials, 17 other judges decided he is qualified expert…fact that tends to be hired by P more than D, could suggest some kind of interest 4. Dr. graduated with honors for Chiropractic and taken 20 hours of continuing educationRelevant = education, knowledge, experience, and training go into deciding whether someone is an expert 5. Dr. received an honorary doctoral degree after serving as fundraising chair for 7 yearsDoes NOT bear at all on qualifications on field of chiropractors
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6. Dr. has been the chiropractor for Shirley MacLainethings like celebrity clientele is NOT relevant ii. 9-9: Action for copyright violation brought against singer for copying Rolling Stones song…at trial, D offers song and expert testimony of rock ‘n roll artist to assist trier of fact to evaluate supposed similarities between the songs…P objects claiming no formal education in musiche can be expert without being able to read a note of music, if familiar with music in that field = can be expert in that field [education is NOT a requirement] SPECIALIZED KNOWLEDGE and EXPERTISE—LIMITS on SUBJECT MATTER of EXPERT TESTIMONY: a. READ Advisory Committee notes on 702—good job explaining [after Amendments made permitting ‘novel science’] i. Prior to Daubertused the Frye standard = could NOT offer scientific opinion unless it achieved a level of ‘general acceptance’ standard in scientific field [now federal relies on 702] ii. Cal.—uses the Kelly-Frye standard still!! 1. Scientific evidence must achieve ‘generally accepted’ reliability 2. OJ Simpson case—DNA testing FINALLY achieved ‘general acceptance’ and can be used in trials 3. takes a while for novel science to become ‘generally accepted’ b. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)—summary judgment was reached when the scientific evidence presented regarding a drug supposedly known to cause birth defects was tests on animals, in vitro tests, and chemical assaysbecause these methods found to not meet the general acceptance standard = this was REJECTED i. RULE: ‘General acceptance’ is NOT a necessary precondition to admissibility of scientific evidencetrial judge has task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to task at hand [pertinent evidence based on scientifically valid principles satisfies (peer review and publication considered; testing; error rates and acceptability in relevant scientific community)] ii. Expanded the Frye standard = federal courts rely on 702 iii. 702 Limitations: 1. Qualifications of experts [judge performs this gate-keeping function] 2. Reliability of principles/methodology 3. Whether ‘expert’ is helpful [can’t testify to something obvious that jurors could determine anyway without expert testimony] iv. RULE: Judge must determine there is a reliable basis for opinionreliably applying reliable principles or methodology to opinion that is going to be offered c. Kumho Tire Co. v. Carmichael (1999)—engineer talking about tire tolerance [tire blow-out case] based on engineering knowledge…does Daubert apply to engineer experts as well?? i. Daubert applies to technical and other specialized knowledge = trial judge has obligation to ensure relevant and reliable ii. RULE: Trial judge must ensure the reliability of experts on technical and other specialized knowledge iii. Factors: 1. Whether theory or technique can be tested 2. Whether theory/technique has been subjected to peer review and publication 3. Error rate 4. Whether theory has received general acceptance [NOT determining factor as it is under Cal.’s Kelly Frye standard] d. Gate-keeping function of judge: i. Qualifications of experts ii. Whether expert used reliable principles and methodology in opinion iii. Whether expert was helpful e. Problems: i. 9-15: The major issue in murder prosecution was whether the get-away van was in fact the D’s vehicle…prosecution offered expert in photography with extensive experience in a variety of lighting conditions…photographer will testify about the conditions in which the ID of the van was madequestion of whether eyewitness was able to see to made identification = do NOT
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know enough about what that is being used for to have an understanding…assuming lighting was sufficient for eyewitness to identify the van, then there may be issue that expert COULD offer some helpful information [must qualify as expert in lighting…and if issue with ability to see = could testify] 9-16: Sole issue in medical malpractice case was whether the D, Dr., an emergency room surgeon was required to operate to save the victim’s life or whether there had been a viable alternative to treatment…Dr. S, experienced internist called to testify on Dr.’s behalf and says that operation was necessary to save the victim’s lifefact that it concerns ultimate issue at trial does NOT matter…question of whether internist is qualified to render opinion on emergency room surgery [slightly outside her area of expertise] 9-17: Defendants charged with mail fraud, securities fraud, and conspiracy…at trial, prosecution called well-known securities analyst to testify about D’s conduct…witness testified that in his opinion acts constituted a clear scheme to defraud othersexpert is NOT uniquely qualified to give opinion [NOT being called expert psychiatrist]…opinion seems to make him 13 th juror, his area of expertise [securities analyst] does NOT bear on case…NOT helpful expert [expertise don’t bear on whether committing fraud] 9-18: E charged with attempted murder of ex, at trial E raises insanity defense and Dr. testifies that E is NOT insaneinadmissible under 704(b) = prohibits expert testimony as to whether D had requisite mental state to commit and offense [can describe symptoms, but can NOT describe him as insane]; Cal. = NO limitation…psychiatrist can testify that he is insane 9-19: JB signed a multi-year K with new team, his then existing contract allowed both sides to be excused from K if ‘good-faith’ negotiations did NOT produce an extended agreement…they sue claiming JB didn’t act in good faith, at trial JB calls brother, expert in negotiations, to testify that ‘in my opinion, JB definitely negotiated in good faithdoes expert in negotiation qualifications have knowledge beyond jurors to determine if they were done in good-faith?? Jurors can come to their own conclusion whether negotiating in good faith…expertise NOT really helpful = just telling jurors how to vote [nothing disqualifies brother or even own party to being expert…crazy to have someone that biased to be expert, should have neutral person] 9-20: B sold large quantities of No Kill batteries…due to design problems No Kill batteries suffered from defects, B brought suit against manufacturer of battery and at trial executive VP is asked to give opinion on amount of damages suffered as a result of defectsexecutive VP of company has access to books and could testify to losses = NOT an expert, just testifying as to her personal knowledge as to what damages resulted 1. Do NOT need an expert!! Party in case or employee of party can testify to actual losses 2. Author’s attempt to mislead by using ‘opinion’ = this witness likely has requisite personal knowledge to testify, would be a fact witness, NOT expert opinion testimony 9-21: P filed civil rights action against Sherriff’s office alleging sheriff conducted warrantless searches of his home…P called famous attorney to stand to testify as expert and states that conduct qualifies as ‘search’ and P had not legally consented to searchto have this attorney basically draw the inference that judge would be directing jury to draw = overstepping [if it were sheriff explaining why he believed he had probable cause it would be different] 9-22: In sexual harassment action, P offered testimony of Dr. L, an expert psychologist, to describe the profile of sexual harasser…will testify that typically married, victim’s supervisor, and has known victim for at least 6 monthsif it is statistical type of thing [use of profile and D tends to fit profile]…if using profile, what was methodology used, sample used = questionable if offered to jury [law enforcement use, but usually NOT given to jury]…jury should analyze this particular conduct on this occasion, NOT just fitting a profile [even if it were admissible (NOT likely because NOT independently relevant), still issue of reliability of principles/methodology] 9-23: University professor sues employer, claiming age and religion discrimination associated with pay raises…professor’s specialty is statistical data in employment discrimination cases, and he offers himself as expert witness at trialNOT a disqualification that expert also happens to be a party = assuming meet criteria of 702, court can qualify as expert [jury will NOT consider neutral expert testimony, matter of strategy] 9-24: Prisoner brought civil rights action claiming that prison officials failed to protect him from knife attack by other inmates…P offers testimony of an inmate serving a sentence of life imprisonment to testify as an expert on gang violence in prisonquestion of expertise = if lifer,
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chances are that he has sufficient knowledge [fact that he is prisoner does NOT make him disqualified] xi. 9-25: D charged with stealing all the bases at the local stadium…at trial, D offers testimony of psychiatrist to testify that D could not form the necessary specific intent to steal as required under law 1. This testimony would be prohibited in BOTH Cal. and federally 2. Could Dr. testify that D did NOT know right from wrong at timecould testify concerning symptoms of mental illness = capable of determining right from wrong 3. Does NOT make a difference between psychiatrist, psychologist, or social worker [assuming they could all qualify as expert under 702] x. 9-26: Planas sued Unesco for allegedly breaching a K to import a load of bananas from Caribbean…at trial, P claimed that the law of Dominica applied and asked court to take judicial notice of it, the court refused to…P then offered a Dominica law professor to testify about the substance of the pertinent Dominica law…D objectsif law of Dominica controls construction of K = ONLY way you can prove is by having expert in law of that country testify as to what the laws of their country are and how it applies in this particular case [testimony is allowed] The BASES off EXPERT TESTIMONY: a. ONLY limitationjudge will NOT automatically let jury know basis of opinion is inadmissible, but will let jury know if determines that probative value of hearing the evidence substantially outweighs the danger of unfair prejudice…but will give a limiting instruction! b. Problems: i. 9-27: P filed suit after fire and at trial combustion expert testifies to cause and circumstances of fire…states fire ‘probably caused by stuffed up chute’…testimony primarily based on statement of fireman who reportedly said while fighting fire ‘hey, there’s no smoke coming out of the roof vent next to the garbage chute’…fireman died of smoke inhalation from fire prior to trial703 permits opinion based on evidence if type reasonably relied on in the field, even if the evidence is NOT admissible 1. Might NOT be inadmissible hearsay = present sense impression [803(1)]anyone who heard that could testify to it 2. Either way, can still form basis of opinion ii. 9-28: Orthopedist called to testify as expert in personal injury action regarding damages to P 1. What is your opinion about extent of injuries suffered, in my opinion P’s injuries are…Can offer opinion first and if proponent of evidence, NEVER have to offer basis of opinion [foolish to not do this] = offer opinion 1 st, then basis 2. Asked if assuming P put ice on injury and told to walk it off, in your expert opinion, what impact did this have on P’s injury [objection = speculation]Experts can speculate!! Difference between experts and lay opinions…experts can answer hypothetical questions, just has to be basis for expert’s opinion based on the hypothetical question 3. What do you rely on that not healing as fast as it should…duty nurse wrote on… [objection = HS]OK for experts to rely on inadmissible hearsay and inadmissible other types of evidence = assumption that expert will know how to sift between reliable and unreliable evidence [jury can be let known] 4. Judge then asks what is expert’s basis of opinioncourt can ask questions = judges can ask any question of witness [though they don’t usually do so] 5. After cross and P has rested, judge decides to call a different orthopedist to testify706 specifically provides for a way for court to call and retain own expert witness [unusual, but provided for]