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CHAP. 9 _ OPINION EVIDENCE - law.uh.edu

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CHAP. 9 :OPINION EVIDENCE
Prof. JANICKE2019
OPINIONS ARE GENERALLY INADMISSIBLE
RULE 602 REQUIRES ACTUAL “KNOWLEDGE” FOR MOST TYPES OF EVIDENCEKNOWLEDGE MEANS PHYSICAL PERCEPTIONS ONLY!BUT: IN A PRACTICAL JUSTICE SYSTEM, WE NEED SOME ROOM FOR OPINIONS
Chap. 9 -- Opinion Evidence
2
2019
MEANING OF OPINIONS
ABOUT 98% OF WHAT WE THINK WE “KNOW” ARE ACTUALLY OPINIONS (e.g., OUR OWN AGE; ID OF U.S. PRESIDENT OR TEXAS GOVERNOR)OPINIONS CONSIST OF:FACTS LEARNED FROM OTHERS WHO MAY ACTUALLY KNOW THEMCONCLUSIONS WE HAVE DRAWN FROM OUR OWN OBSERVATIONS
Chap. 9 -- Opinion Evidence
3
2019
THE OPINION OBJECTION :
GENERAL RULE: OPINIONS ARE NOT ALLOWED IN EVIDENCE“OBJECTION, YOUR HONOR; IT CALLS FOR AN OPINION”IF JUDGE AGREES, THIS SETS THE STAGE FOR FURTHER ANALYSIS:SOMEKINDS OF OPINIONS ARE ADMISSIBLE
Chap. 9 -- Opinion Evidence
4
2019
OPINIONS OF NON-EXPERTSRULE 701
ALLOWED IF:BASED ON A PHYSICAL PERCEPTION BY THE WITNESS, ANDRATIONALLY BASED, ANDHELPFUL TO THE TRIER OF FACT[NOTE: YOUR OPINIONS ABOUT YOUR AGE OR FAMOUS OFFICE-HOLDERS WILL NOT QUALIFY!]
Chap. 9 -- Opinion Evidence
5
2019
“HELPFUL” MEANS THERE’S NO OTHER FEASIBLE WAY TO CONVEY THE WITNESS’S OBSERVATIONIF TESTIFYING TO A FEW FACTS CAN CONVEY THE STORY TO THE JURY JUST AS WELL, THE OPINION IS DISALLOWED
Chap. 9 -- Opinion Evidence
6
2019
EXAMPLES OF ADMISSIBLE LAY OPINIONS
HE WAS DRUNK (or SOBER)HE WAS UPSETSHE WAS NERVOUSSHE WAS ANGRYALL REQUIRE FOUNDATION OF A PHYSICAL PERCEPTION
Chap. 9 -- Opinion Evidence
7
2019
FURTHER EXAMPLES OF LAYOPINIONSTRADITIONALLY ALLOWED
INSANITY or SANITYHANDWRITINGBOTH REQUIRE FOUNDATION OF PHYSICAL PERCEPTION
Chap. 9 -- Opinion Evidence
8
2019
PROBLEMS/CASES
9A9B
Chap. 9 -- Opinion Evidence
9
2019
EXPERT OPINIONS:1ST-HAND PERCEPTION ISNOTREQUIRED (RULE 702)
SPECIAL KNOWLEDGE OR EXPERIENCE IN SOME AREASCIENTIFIC, BUSINESS, ARTS, CAR REPAIR, ETC., ETC.CRIME DETECTION? CONTROVERSIAL
Chap. 9 -- Opinion Evidence
10
2019
EXPERT’S METHODOLOGY MUST BE RELIABLE
CHECKED INITIALLY BY THE JUDGE, AT A HEARING BEFORE TRIALIF JUDGE FINDS METHODOLOGY WAS RELIABLE, OPINION IS ADMITTED FOR JURY EVALUATIONJURY MAY STILL FIND METHODOLOGY WAS UNRELIABLE AND GIVE OPINION NO WEIGHT
Chap. 9 -- Opinion Evidence
11
2019
VOIR DIRE PRIOR TO GETTING OPINION IS ALMOST UNIVERSAL
JUDGE HAS ALREADY DECIDED GOOD METHODOLOGY,BUT:NEED TO CUT THE EXPERT DOWN TO SIZE BEFORE THE JURYDIDN’T CONSIDER XDIDN’T CONSIDER YCONCEDE FALLIBILITYWITNESS’S MISTAKES MAY HAVE OCCURRED IN CARRYING OUT EVEN A GOOD METHODOLOGY
2019
Chap. 9 -- Opinion Evidence
12
PROBLEMS/CASES
9CDaubertKumho9DMoore9E
Chap. 9 -- Opinion Evidence
13
2019
OPINION ON AN ULTIMATE FACT[R. 704]
THE OLD CLICHÉ: “INVADING THE PROVINCE OF THE JURY”WAS NONSENSENOW GENERALLY ALLOWED, IF OTHERWISE IN COMPLIANCE WITH RULES
Chap. 9 -- Opinion Evidence
14
2019
EXCEPTION (FEDERAL: 18 USC 17): STATE OF MIND OF CRIMINAL D.THE OLD CLICHÉSURVIVES HEREUSUALLY SANITY IS INVOLVEDEXPERT MUST STAY ONE-STEP-BACKTEXAS RULE: DOES NOT HAVE THE EXCEPTION;EXPERT CAN ALWAYS GO TO THE BOTTOM LINE, IF METHODOLOGY IS GOOD
Chap. 9 -- Opinion Evidence
15
2019
COURT-APPOINTEDEXPERT WITNESS(RULE 706)
GOOD IN THEORYLITIGATORS CRINGE!
Chap. 9 -- Opinion Evidence
16
2019
ACCEPTING A STIPULATION OF EXPERTISE OF YOUR EXPERT WITNESS?
A STIPULATION OF CREDENTIALS IS OFTEN VOLUNTEERED BY ADVERSARYIS SELDOM ACCEPTEDWOULD REMOVE DRAMANOW YOU HAVE NO FEAR OF ANY OBJECTION TO CREDENTIALS
Chap. 9 -- Opinion Evidence
17
2019
PROBLEMS/CASES
Film Clip fromMy Cousin Vinnyon expert witness testimony
Chap. 9 -- Opinion Evidence
18
2019

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CHAP. 9 _ OPINION EVIDENCE - law.uh.edu