2. Opinion testimony by experts (FRE 702)
a. Requirements
i) Subject matter must be appropriate for expert testimony: “assist the trier of fact”
1) The opinion must be relevant (i.e., it must fit the facts of the case)
2) The methodology underlying the opinion must be reliable (FRE 702)
a) The opinion is based on sufficient facts or data
b) The opinion is the product of reliable principles and methods
c) The expert has reliably applied the principles and methods to the facts of the case
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
ii) Witness must be qualified as an expert (FRE 702)
iii) Opinion must be supported by proper factual basis (FRE 703, FRE 705)
1) Personal observation
Typical examples are the forensic chemist who analyzes and testifies about the nature of a controlled substance or the treating physician who testifies about the cause and extent of an injury.
2) Facts made known to expert at or before trial
An expert witness may testify about admitted evidence (record facts).
3) Facts made known to expert outside court
An expert may give an opinion based on information supplied to the expert outside the recorded facts, if of a type reasonable relied upon by experts in the particular field.
FRE 703 permits an expert to base an opinion on hearsay information, but it does not recognized a hearsay exception for this information (refer to the 3rd sentence of FRE 703).
b. Opinion may embrace ultimate issue (FRE 704)
Opinions on ultimate issues are allowed except when they relate to the mental state of a criminal defendant (FRE 704(b)).
c. Authoritative texts and treaties (FRE 803(18))
If admitted, the statements may be read into evidence but may not be received as exhibits (i.e., the jury never sees it.)
The treatise itself is not admissible as an exhibit under FRE 803(18).
EXAMPLE: (using treaties during the direct examination of experts)
Q: Dr. Spencer, as part of your evaluation of this case, did you rely on any treatise in your field?
A: Yes.
Q: Which one?
A; I relied in part on a standard treatise, Saunders on Obstetrics.
Q: Is Saunders on Obstetrics recognized as a reliable authority in your field?
A: Absolutely. It’s probably the most-used treatise in obstetrics today.
Q: Did you rely on any statement in Saunders on Obstetrics during your evaluation of this case?
A: Yes.
Q: Do you have that treatise with you?
A: Yes [holds up treatise], it’s been marked as Plaintiff’s Exhibit No. 3. I relied particularly on page 353, the section called “Disturbances in the Newborn – Asphyxia.” That’s the section I found particularly useful.
Q: Your honor, at this time we ask that Dr. Spence be allowed to read those statements from the treatise that he relied on in reaching his conclusions.
JUDGE: He may. Proceed.
Q: Dr. Spence, please read those statement.
A: On page 353 of the treaties, it says …
Monday, May 30, 2011
Intro to the Federal Rules of Evidence - 36
C. OPINION TESTIMONY (ART. VII)
1. Opinion testimony by lay witnesses (FRE 701)
Lay opinions are allowed if they are helpful to the jury in its fact-finding.
a. When admissible
i) it is rationally based on the perception of the witness
ii) it is helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, &
iii) it is not based on scientific, technical, or other specialized knowledge; if so based, it would need to the requirements of expert under FRE 702.
b. Examples
i) general appearance or condition of a person: “elderly,” “about 60 years old,” “strong,”
ii) state of mind : “angry,” “was joking”
iii) matters involving sense recognition : “heavy,’ “red,” “bulky,” “tasked like whisky”
iv) voice or handwriting identification (FRE 901(b)(2), 901(b)(5))
1. Opinion testimony by lay witnesses (FRE 701)
Lay opinions are allowed if they are helpful to the jury in its fact-finding.
a. When admissible
i) it is rationally based on the perception of the witness
ii) it is helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, &
iii) it is not based on scientific, technical, or other specialized knowledge; if so based, it would need to the requirements of expert under FRE 702.
b. Examples
i) general appearance or condition of a person: “elderly,” “about 60 years old,” “strong,”
ii) state of mind : “angry,” “was joking”
iii) matters involving sense recognition : “heavy,’ “red,” “bulky,” “tasked like whisky”
iv) voice or handwriting identification (FRE 901(b)(2), 901(b)(5))
Intro to the Federal Rules of Evidence - 35
B. METHODS OF EXAMINATION OF WITNESSES (FRE 611)
1. Judicial Control of Trial (FRE 611(a)
FRE 611(a) is written in broad terms. Among other things, the trial judge has the authority to
reopen the case, alter the order of proof, permit the recall of a witness, and grant continuances. In addition, the judge may authorize special methods to deal with child witnesses and set time
limits for the presentation of evidence. The court’s control also extends to jury issues, such as
the use of exhibits in the jury room, jury questioning, and jury note-taking.
2. Scope of Cross-examination (FRE 611 (b))
Under the rule, cross examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses.
EXAMPLE
Q (CROSS-EXAMINER): Let’s now turn to the events after the board meeting on June 1, and specifically to the meeting on June 15. At that next meeting, didn’t you …
OPPOSING LAWYER: Objection. Beyond the scope. We didn’t go into that meeting on direct.
JUDGE: Sustained. Counsel, I’ll give you leeway to go into that meeting, but you’ll have to do it as if on direct.
3. Leading Questions
Leading questions are prohibited on direct examination because it is thought that a witness is particularly susceptible to suggestion under question by the party calling the witness. A leading question is one that would cause the reasonable person to believe that the question is seeking one specific answer rather than another, i.e., the one wanted by the questioner.
Exceptions to no leading question on direct (FRE 611(c)):
1) when necessary to develop a witness’s testimony
2) when the witness is hostile
3) when the witness is an adverse party
4) when the witness is identified with an adverse party.
EXAMPLE
Q: The right was red when the two cars collided, right?
A: Yes.
Q: And it was dark at the time?
A: Yes.
Q: Raining?
A: Yes.
Q: No street lights on that corner?
A: Right.
Q: And you were over 100 feet from the corner when the two cars collided, isn’t that true?
A: Yes.
4. Other common objections
There are numerous trial objections that are not specifically referenced in the FRE. Some of the more common are:
Argumentative questions: are leading questions that reflect the examiner’s interpretation of the facts.
“Why were you driving so recklessly?”
Misleading: one that cannot be answered without making an unintended admission.
“Do you still beat you wife?”
Assuming facts not in evidence: questions that assumes that a disputed fact is true when it has not been established in the case.
In case where there is no evidence that D had been drinking, “After D finished his fifth beer, he got up and went to his car, didn’t he?”
Compound questions: requiring a single answer to more than one question.
“Did you see and hear the intruder?”
Nonresponsive answers: a witness’s response must address only the specific question asked by the examining attorney; otherwise the testimony is subject to being stricken for non-responsiveness.
Q: Did you leave your house on Sept. 22?
A: I went to the dentist and then to the grocery store.
This answer is nonresponsive, as the question calls for a “yes,” or “no” response.
1. Judicial Control of Trial (FRE 611(a)
FRE 611(a) is written in broad terms. Among other things, the trial judge has the authority to
reopen the case, alter the order of proof, permit the recall of a witness, and grant continuances. In addition, the judge may authorize special methods to deal with child witnesses and set time
limits for the presentation of evidence. The court’s control also extends to jury issues, such as
the use of exhibits in the jury room, jury questioning, and jury note-taking.
2. Scope of Cross-examination (FRE 611 (b))
Under the rule, cross examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses.
EXAMPLE
Q (CROSS-EXAMINER): Let’s now turn to the events after the board meeting on June 1, and specifically to the meeting on June 15. At that next meeting, didn’t you …
OPPOSING LAWYER: Objection. Beyond the scope. We didn’t go into that meeting on direct.
JUDGE: Sustained. Counsel, I’ll give you leeway to go into that meeting, but you’ll have to do it as if on direct.
3. Leading Questions
Leading questions are prohibited on direct examination because it is thought that a witness is particularly susceptible to suggestion under question by the party calling the witness. A leading question is one that would cause the reasonable person to believe that the question is seeking one specific answer rather than another, i.e., the one wanted by the questioner.
Exceptions to no leading question on direct (FRE 611(c)):
1) when necessary to develop a witness’s testimony
2) when the witness is hostile
3) when the witness is an adverse party
4) when the witness is identified with an adverse party.
EXAMPLE
Q: The right was red when the two cars collided, right?
A: Yes.
Q: And it was dark at the time?
A: Yes.
Q: Raining?
A: Yes.
Q: No street lights on that corner?
A: Right.
Q: And you were over 100 feet from the corner when the two cars collided, isn’t that true?
A: Yes.
4. Other common objections
There are numerous trial objections that are not specifically referenced in the FRE. Some of the more common are:
Argumentative questions: are leading questions that reflect the examiner’s interpretation of the facts.
“Why were you driving so recklessly?”
Misleading: one that cannot be answered without making an unintended admission.
“Do you still beat you wife?”
Assuming facts not in evidence: questions that assumes that a disputed fact is true when it has not been established in the case.
In case where there is no evidence that D had been drinking, “After D finished his fifth beer, he got up and went to his car, didn’t he?”
Compound questions: requiring a single answer to more than one question.
“Did you see and hear the intruder?”
Nonresponsive answers: a witness’s response must address only the specific question asked by the examining attorney; otherwise the testimony is subject to being stricken for non-responsiveness.
Q: Did you leave your house on Sept. 22?
A: I went to the dentist and then to the grocery store.
This answer is nonresponsive, as the question calls for a “yes,” or “no” response.
Intro to the Federal Rules of Evidence - 34
V. TESTIMONIAL EVIDENCE (ART. VI & ART. VII)
Oral evidence given under oath.
A. COMPETENCY (FRE 601)
FRE 601 provides that all witnesses are competent.
Even those adjudged insane are not necessarily disqualified because a test for insanity differs a standard for witness competency.
1. Federal question cases
The FREs require personal (firsthand) knowledge (FRE 602) and an oath (FRE 603).
a. Personal Knowledge (FRE 602)
i) Foundation - own Testimony
Evidence of personal knowledge may consist of the W’s own testimony such as “I saw the light and it was green.” However, simply stating “The light was green,” requires the foundation that the witness saw the light.
ii) Equivocating W
a witness’s expression of uncertainty is not ground for exclusion so long as the witness had an opportunity to observe.
“I think,” “As I recall,” or “Probably,” etc. equivocation goes to the weight, not admissibility of testimony. Weight is for the jury to consider.
iii) Standard of Proof: Prima facie
The trial judge does not decide whether or not a witness has firsthand knowledge by a preponderance of evidence (the usual standard), but only whether sufficient evidence to support a finding that firsthand knowledge has been introduced, i.e., a prima facie standard. In effect FRE 602 is a specialized application of the conditional relevancy principle of FRE 104(b).
EXAMPLE
Q (LAWYER): What color was the light at Main and Elm when the two cars collied?
A: It was red for the Main Street traffic.
Q: How do you know?
A: Because Mary Smith saw the crash and she told me.
OPPOSING LAWYER: Objection, your honor. No personal knowledge.
JUDGE: Sustained.
b. Oath Requirement (FRE 603)
FRE 603 requires witnesses to swear or affirm to the truthfulness of their testimony. The purpose of the oath is merely to add a stimulus to truth-telling. And a perjury prosecution requires the taking of an oath.
c. Judge as a witness (FRE 605)
The judge presiding at the trial may not testify in that trial as a witness.
d. Juror as a witness (FRE 606)
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.
e. Expert witnesses (FRE 702 – 706)
2. Diversity cases
Federal courts honor a state rule of competency in diversity cases.
Oral evidence given under oath.
A. COMPETENCY (FRE 601)
FRE 601 provides that all witnesses are competent.
Even those adjudged insane are not necessarily disqualified because a test for insanity differs a standard for witness competency.
1. Federal question cases
The FREs require personal (firsthand) knowledge (FRE 602) and an oath (FRE 603).
a. Personal Knowledge (FRE 602)
i) Foundation - own Testimony
Evidence of personal knowledge may consist of the W’s own testimony such as “I saw the light and it was green.” However, simply stating “The light was green,” requires the foundation that the witness saw the light.
ii) Equivocating W
a witness’s expression of uncertainty is not ground for exclusion so long as the witness had an opportunity to observe.
“I think,” “As I recall,” or “Probably,” etc. equivocation goes to the weight, not admissibility of testimony. Weight is for the jury to consider.
iii) Standard of Proof: Prima facie
The trial judge does not decide whether or not a witness has firsthand knowledge by a preponderance of evidence (the usual standard), but only whether sufficient evidence to support a finding that firsthand knowledge has been introduced, i.e., a prima facie standard. In effect FRE 602 is a specialized application of the conditional relevancy principle of FRE 104(b).
EXAMPLE
Q (LAWYER): What color was the light at Main and Elm when the two cars collied?
A: It was red for the Main Street traffic.
Q: How do you know?
A: Because Mary Smith saw the crash and she told me.
OPPOSING LAWYER: Objection, your honor. No personal knowledge.
JUDGE: Sustained.
b. Oath Requirement (FRE 603)
FRE 603 requires witnesses to swear or affirm to the truthfulness of their testimony. The purpose of the oath is merely to add a stimulus to truth-telling. And a perjury prosecution requires the taking of an oath.
c. Judge as a witness (FRE 605)
The judge presiding at the trial may not testify in that trial as a witness.
d. Juror as a witness (FRE 606)
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.
e. Expert witnesses (FRE 702 – 706)
2. Diversity cases
Federal courts honor a state rule of competency in diversity cases.
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