Evidence - Opinion & Expert Testimony

Any testimony that a lay witness gives that is an opinion or an inference must be:

1) Rationally based on the perception of the witness; and 2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue

For hearsay purposes, a statement is what?

1. An oral or written assertion that is intended as a communication; or 2. Assertive conduct (i.e., conduct intended as an assertion)

Methods of Impeachment

1. Impeachment based on Bias or Prejudice 2. Impeachment based on Sensory Defects 3. Impeachment based on Prior Inconsistent Statement 4. Impeachment based on Character

Elements of Bad Act Impeachment

1. a question; 2. on cross-examination; 3. inquiring into prior unconvicted acts bearing on (un)truthfulness (or dishonesty).

Collateral Matter Rule

A collateral matter is evidence solely affecting the credibility of a witness. While questioned about a collateral matter, the party cross examining the witness is bound by the witness's answer to matters solely affecting credibility. It precludes the cross examiner from calling other witnesses or producing documentary evidence to contradict the witness.

For impeachment via prior crime, if you are using a prior felony and the witness is not the accused, the use of the felony is subject to what?

A felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).

Trade Secrets Privilege

A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice.

Who is competent to testify as a witness?

Anyone can testify as a witness. This includes a child, an attorney, an alcoholic or drug addict etc.

Can you ask a character witness if their opinion would change if they knew the defendant was guilty?

No, improper to impeach

Assertive Conduct

Assertive conduct = conduct intended to communicate as a substitute for words Examples: pointing a finger to give directions; shaking one's head yes or no; a sketch by a police artist

Does the collateral matter rule apply to impeachment based on bias or prejudice?

Bias or Prejudice is always material, never collateral. Collateral Matter Rule does not apply to bias - can be used to impeach. In other words, you can use extrinsic evidence to prove bias or prejudice Examples • Personal or Family hostility or relationship • Business relationship • Confidential informant • Fee arrangement, ex. Fee paid to an expert or an informant

Examples of ADMISSIBLE types of bad acts:

Filing a false tax return; putting incorrect information on an employment application; forgery; using a false name; falsifying a resume or academic record; lying about age, marital status, employment; cheating at cards.

In a civil case, can a party comment on another party's failure to take the stand and provide testimony? Can any negative inference be drawn from this? Is either ok in criminal cases?

Civil cases: Yes you can comment, and yes you can make inference Criminal cases: No to both

The 10 year rule for Impeachment via crimes involving dishonesty or making a false statement applies unless:

Convictions more than 10 years old are inadmissible to impeach unless: the probative value substantially outweighs the prejudicial effect.

What is a dead man's statute, and do they apply under the FRE Rules?

Dead Man's Statutes have been abolished under the FRE. They can still be tested however. A Dead Man's Statute disqualifies a witness from testifying about any transaction involving the decedent (his lips are sealed). If a state has a Dead Man's Statute: the federal court will apply it (Erie Doctrine)

Is the statement admissible: A defendant claiming self-defense wants to use a statement that he was told that the victim wanted to kill him because he was sleeping with the victim's girlfriend.

Declarant: Someone Statement: The victim wants to kill you b/c you slept w/ his girlfriend. Admissible: The statement is not being offered to prove the defendant wanted to kill the victim, or that the defendant was cheating, rather to show that the defendant was reasonable in using deadly force - i.e. motive for self-defense

Is the statement admissible: The plaintiff was injured in auto accident wants to introduce that moments before defendant lost control of his car, someone told him that his tire looked as if it was going to burst. Admissible?

Declarant: Someone Statement: Someone told D his tire looked like it was going to burst Admissible: Yes, to show the effect on the listener, he was warned, he should not have continued to drive. Not for the state of mind of the declarant, or for its truth, rather a statement of warning.

Evidence Not Offered for Its Truth (Not Hearsay) - What are the two major types (excluding the ones under 801, they will be mentioned in another card)

Effect on the listener Verbal Acts

In what type of cases does impeachment via character apply? Who can call a character witness to impeach another witness via this method?

Either party may call a witness in both civil and criminal cases.

Political Vote Privilege

Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws.

Hearsay Exemptions arise under what rule?

FRE 801

Do the FRE rules favor hearsay exemptions over exceptions or exceptions over exemptions?

Hearsay exemptions - so things that are deemed NOT to be hearsay - are favored over exceptions. So we want to apply an exemption over an exception if we can

Effect on the listener is concerned w/ what?

How the declarant's statement effects the listener (notice, motive etc.) - We are not concerned with the declarant. We don't care about what he said or if what he said was true. We aren't offering the statement to prove its truth

True or False:

If a defendant has been pardoned from a conviction, it is no longer admissible to impeach.

Are juvenile adjudications admissible for impeachment via crimes involving dishonesty or making a false statement?

It depends • Inadmissible against the accused if he testifies. • For all other witnesses: it's up to the judge

These are examples of what kind of conduct: • Videotapes showing defendant's demeanor; drunk or stumbling • Defendant walking w/ a limp or w/ an unsteady gait due to injury or intoxication • Defendant speaking w/ slurred speech; how she said it

Non-assertive conduct

Non-assertive Conduct

Non-assertive conduct = conduct not intended as a statement, not intended to communicate

What are the different tests for determining reliability of scientific theory presented by an expert?

Majority position - Uses Daubert (Use TAPES to help remember) Minority position - Frye test, which requires general acceptance in the scientific community, is the MBE; trap answer

If a witness refuses to take an oath for religious reasons, or an affirmation, the judge shall:

NOT allow witness testimony.

Are arrest records, indictments, and other charges admissible under for impeachment via crimes involving dishonesty or making a false statement?

No

Are these covered by the fifth amendment privilege against self-incrimination: Blood, hair, handwriting samples, fingerprints, lineups, photo IDs; scars, tattoos; put on a hat, item of clothing; bloody glove, "read this."

No

Can a juror testify as a witness before the jury of which he is a member?

No

Do the hearsay and best evidence rules apply to an attorney's use of materials to refresh a witness's recollection?

No

Does testimony given at a preliminary hearing waive the privilege of the accused not to take the stand at trial?

No

Is non-assertive conduct hearsay?

No

Is an expert required to testify about the underlying facts or data which form the basis of his opinion before testifying as to his opinion?

No - An expert may testify and give reasons without first testifying to the underlying facts or data unless the court requires otherwise. BUT The expert may be required to disclose these facts on cross examination.

In a criminal case can an expert give an opinion as to whether the D did or did not possess the mental state or condition that constitutes an element (or defense) of the crime charged?

No - such issues are determined by the jury

A woman is involved in a car accident. When a police officer arrives, she tells him that she had the green light and the other driver drove through the red light. At trial, her attorney calls her to the stand to testify as to what she said to the police officer at the accident scene. Is her testimony admissible?

No, because she is testifying about an out-of-court statement. The issue here isn't whether the woman is available for us to cross examine, its our inability to cross examine her when she made the statement to the police officer. So her simply being available for us in court isn't going to fix things. NOTE: theoretically, the woman could testify as to what she saw, so she'd be giving a lay opinion and there would be no hearsay, but this example asks her to testify about her conversation w/ the police officer, not simply what she saw.

A man is shot to death and his girlfriend goes to his house the next day to retrieve her belongings. She is apprehensive, sees a neighbor in the street, and asks the neighbor to accompany her into the house. The boyfriend's parrot, upon seeing the neighbor, squawks, "He did it." Is it hearsay? Can the girlfriend testify as to what the parrot said?

No—it needs to be a person. No—inadmissible because the parrot speaking doesn't make it more or less likely to be true. Not a statement, not hearsay, irrelevant.

Improper scope of non-expert opinion is opinions on:

Opinions stated in conclusory terms are not appropriate. •EXAMPLE: The plaintiff was contributorily negligent. •EXAMPLE: A contract existed. •EXAMPLE: The defendant assaulted the victim.

Reasonable Reliance Rule

Out-of-court facts must be of the type "reasonably relied upon" by other experts in the particular field

Examples of admissible crimes for Impeachment via crimes involving dishonesty or making a false statement

Perjury, counterfeiting, forgery, larceny by trick, tax evasion, false pretenses, crimes in general that involve a false representation.

Rule 702 formula (Is expert testimony admissible)

Qualifications + (Relevance + Reliability) = Admissibility

Does the collateral matter rule apply to impeachment based on sensory defects?

Sensory Defects: Inability to observe, communicate, or remember is always relevant, never collateral. However, it is generally not allowed as to whether witness is addicted to drugs or alcohol (unless immediately connected to witness's credibility). Think of My Cousin Vinny à how long does it take your grits to cook, your glasses aren't thick enough to see, you don't remember if there was mud on the windows etc.

Daubert Factors - Remember TAPES

T: has the theory been Tested? (If so, how extensively?) A: general Acceptance in the relevant community P: Peer review of the scientific theory E: degree or rate of Error S: Standards

A grand theft case is being prosecuted in 2010. The witness was previously convicted of felony forgery that occurred in 1999, so the conviction is over 10 years old. If the witness was convicted in 1999 and served three years in prison, the witness would have been released in 2002. What date should we use to measure how old the conviction is for impeachment purposes?

That release date would be the date from which the crime is measured. Therefore, the conviction is only eight years old as of 2010, and thus would not be time-barred.

Is a conviction under appeal admissible for impeachment via crimes involving dishonesty or making a false statement?

The conviction is admissible, but the jury can properly be informed that the conviction is under appeal.

Who controls the examination of witnesses and presentation of evidence to effectively ascertain the truth and prevent harassment of witnesses?

The judge

Who determines what type of technology may be used; whether jurors can ask questions. (Permissible in federal court)

The judge

Verbal Acts

The words themselves can give rise to a cause of action (i.e., words that have independent legal significance ILS or legally operative facts LOF) The truth of the statement is irrelevant; the fact that they were uttered is what we are proving Tortious Words and Transactional Words

These are examples of what: • alarm clock going off; • church bell chiming; • radar measuring speed of car; • printout of wind speed (computer printout where it processes human input); • time/temperature display; • talking parrot.

Things that do not qualify as statements

What types of cases does impeachment by evidence of conviction of a crime (a form of character impeachment) apply to? What witnesses does it apply to?

This rule applies in BOTH civil and criminal cases, and applies to all witnesses, this includes parties that are also acting as witnesses in their own case.

True or False: A court may excuse a witness if: the probative value of the witness's testimony is outweighed by unfair prejudice

True

True or False: A party cannot call a witness solely to impeach that witness with a prior inconsistent statement.

True

True or False: A witness's character for untruthfulness is ALWAYS material and may be attacked by using reputation or opinion evidence.

True

True or False: An appointed expert MAY be called to testify and be cross-examined by either party.

True

True or False: An appointed expert witness MUST advise the parties of her findings and must allow either party to depose her.

True

True or False: At the request of a party, the court shall: order witnesses excluded so that they cannot hear testimony of other witnesses.

True

True or False: Beware of the out-of-court declarant appearing in court. The problem is not whether we have a chance to cross examine the person at some time, rather that we cannot test those words, thoughts, feelings at the time of their utterance.

True

True or False: Evidence of a witness's religious beliefs are inadmissible to impair or enhance credibility.

True

True or False: Extrinsic evidence on collateral matters is: INADMISSIBLE to impeach (applies to Bad Act Impeachment)

True

True or False: For hearsay purposes, a statement must be a human statement, not one made by an animal or machine.

True

True or False: Generally, defendant can hide prior convictions by not testifying: but such convictions are admissible at sentencing, and Rule 404(b)

True

True or False: PINS may be oral or written. Its contents need not be: shown to the witness at the time, but on request must be shown to opposing counsel.

True

True or False: Scope of cross-examination is limited to (Rule 611(b)): the scope of direct and matters affecting credibility (impeachment questions).

True

True or False: Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness's credibility.

True

True or False: Suppressed evidence is admissible to impeach. BUT the prosecution can bring this up during sentencing as an aggravating factor if they want too. It functions just like a prior in that regard.

True

True or False: The Fifth Amendment DOES NOT apply when the witness waives the privilege

True

True or False: The court may also interrogate/question any witness called by a party.

True

True or False: The court may, on its own or at the request of either party, appoint expert witnesses.

True

True or False: Where the examiner and the witness are on the same side leading questions are NOT allowed. (Generally speaking)

True

True or False: a prior inconsistent statement (PINS) is NOT "sworn" and is admissible ONLY to impeach. This rule differs from FRE 801, where PINS comes in for its truth.

True

True or False: an immunized witness may still be prosecuted for perjury.

True

Proper scope of non-expert opinion includes (VEMPSS):

V: Value of one's own landii) E: Emotional state of other) M: Measurements (i.e., speed of a vehicle, height, weight, distance)iv) P: Physical states (i.e., intoxicated, tall/short; fat/skinny; healthy/sick; happy/sad) S: Sensoy descriptions (i.e., smell, sound, tase, color) S: Sanity of a testator

Is the statement Admissible: The plaintiff slips in a store and sues. A witness overheard someone mentioning to the store manager that he should take care of the salad oil that spilled.

Who is the declarant: Someone Statement: you should clean up the spilled salad oil Admissible: The declarant's statements would be admissible to show that the manager had notice of the dangerous condition.

Are guilty pleas admissible for impeachment via crimes involving dishonesty or making a false statement?

Yes

If defendant does take stand at trial, and he says something that is contrary to what he said at the preliminary hearing, can we use that evidence as impeachment evidence at trial?

Yes

Is notice required if a party intends to Impeach via crimes involving dishonesty or making a false statement?

Yes

Secrets of State and Other Official Information

• A secret of state is a government secret relating to national security or international relations. • The privilege applies to intergovernmental opinions and policy decisions, investigatory files, and other government materials.

Can an expert give an opinion or inference on an ultimate issue?

Yes - Generally, an expert may give an opinion or inference that embraces an ultimate issue i) Examples (permissible): cause of accident, illness, death; whether a product is unreasonably dangerous/defective; whether a document is forged/genuine; whether the D was insane/mentally ill ii) Examples (impermissible): legal conclusion that the plaintiff was contributorily negligent; legal conclusion regarding the content of law (i.e., the D intended to kill the victim)

Does the collateral matter rule apply to bad act impeachment?

Yes - If the witness lies about the specific instance, collateral matter rule applies. Extrinsic evidence is INADMISSIBLE to prove the prior dishonest act. The examiner is bound by the witness's answer.

Can the jury be pulled?

Yes - the jury may be pulled. After returning a verdict, the attorney defense or prosecution call move to pull the jury. If the judge agrees, he will have each juror stand up and ask them if they agree or disagree w/ the verdict. The juror will say yes or no. Pulling the jury in a case where you need complete unaninimity by the jury could be extremely problematic for the prosecution if you get one person or more that stands up and says they don't agree w/ the verdict.

Where privileged material is used to refresh, the court will rule that:

a waiver has occurred and allow the adverse party to inspect i.e. attorney-client or work product privilege is waived.

Tortious Words

actually defamatory words themselves in a libel/slander action.

On direct, the examiner may jog the witness's memory (i.e., the forgetful witness). You can do this with:

anything

Examples of inadmissible crimes for Impeachment via crimes involving dishonesty or making a false statement

assault, battery, prostitution, gambling, DUI, drug possession, trespass, theft in general.

Requirements to testify as an expert: (2)

i) Expert is qualified (i.e., an expert must have special skills, knowledge, education, experience, or training) ii) Testimony is relevant (i.e., subject matter must be appropriate, and the opinion must be helpful/ relevant to assist the jury)

What are the three bases of opinion testimony for experts? In other words, what are they basing their opinions off of.

i) Personal knowledge at or before trial ii) Facts presented to the expert at trial (i.e., hypothetical questions) iii) Facts presented to the expert outside of court (i.e., reports from others, including inadmissible evidence) - Subject to the reasonable reliance rule

If a conviction is used to impeach the defendant (i.e., accused), the conviction will be admitted if:

the prosecution shows the probative value outweighs the prejudicial effect.

A witness's character for truthfulness can be shown by reputation or opinion evidence ONLY IF:

the witness' credibility for truthfulness has first been attached. NO bolstering in advance - this type of thing would come into play if you were rehabilitating a witness

Transactional Words

the words of a contract, deed, will, judgment

When must the fifth amendment privilege be asserted by witnesses or parties in a civil case?

they must assert the 5th amendment privilege on the stand.

Examples of INADMISSIBLE types of bad acts (that have nothing to do with truthfulness or untruthfulness):

use of drugs or alcohol; failure to pay debts; gambling, prostitution; sexual misconduct.

When a witness waives his fifth amendment privilege, cross-examination is limited to the subject matter about:

which the privilege was waived (not a blanket waiver).

Three ways you can impeach:

you're a liar, you're mistaken, or you're motivated

Executive Privilege

• A court-created privilege: In U.S. v. Nixon (1974), the Supreme Court recognized such a constitutional privilege for the President. • Courts decide whether the privilege applies, although the President has an absolute privilege to refuse to disclose matters of national security

Specific examples to be on the lookout for where a juror's testimony will be ADMITTED when challenging a verdict

• A juror may be questioned regarding whether or not someone brought in a newspaper article about the case. • Juror made an unauthorized visit to the scene. • Juror accepted a bribe. • Juror conducted his own out-of-court experiment regarding evidence presented at trial. • Threats of harm made against the juror or juror's family members. • Communication by juror with court personnel regarding the case. Ex. A juror asks a court personnel if the defendant gets to go home tonight, and the person says, no he's in on some other stuff. This suggests that the defendant is a bad dude and that is improper. • Juror brought a Bible into the courtroom and read passages to other jurors suggesting defendant's guilt.

The witness exclusion rule does not authorize exclusion of:

• A party or a party's representatives • A person whose presence is essential i.e. an expert • Persons exempted by statute (victim of a crime)

A juror may not testify as to the manner in which the jury reached its decision. This includes:

• Affidavits by jurors are also excluded. • any statements made during deliberation. • thought processes by which jurors reached their decisions; or • Votes taken to reach verdict.

Privilege and Identify of Informer

• Both the U.S. and the individual states have a privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement. • Only the government can assert this privilege, not the informant. • A newsperson has no First Amendment privilege to refuse to disclose the identity of his sources [Branzburg v. Hayes]. However, states can provide shield laws to afford such a privilege.

Impeachment via crimes involving dishonesty or making a false statement - What types of crime does this apply to? Is there a limit on how old the crimes can be? Is the admission of such crimes subject to 403?

• Crimes involving dishonesty or false statement include both felonies and misdemeanors. • Admissible as a matter of right (i.e., no balancing i.e. no 403 analysis), as long as they are less than or equal to 10 years old.

Steps of refreshing (procedurally)

• Give a copy to the judge and opposing counsel. • Mark it as an exhibit for identification only. • Ask witness to silently read the document. • Take back the writing. • Ask witness to testify independently of the writing.

•Examples where a juror's testimony will be EXCLUDED when challenging a verdict:

• Juror misunderstood the evidence or the instructions. • Jury reached its verdict improperly (drawing straws or quotient verdict). • Jurors drank alcohol and smoked marijuana during deliberations. • One juror physically bullied another regarding his vote. • Juror fell asleep during deliberations.

Must a witness have personal knowledge of the facts of the case in order to testify?

• Lay witness MUST have: personal knowledge • Expert witness: Personal Knowledge is NOT required

Limitations on Bad Act Impeachment

• Questions must be probative of truthfulness. • Questions must be asked in good faith. • The bad acts cannot be too remote in time. Consider 403. • Only questions of fact are allowed; not rumors, nor arrests.

What are the four different ways you can impeach someone based on character?

• Reputation or opinion: Rule 608(a) • Bad acts: Rule 608(b) • Felony convictions in general: Rule 609(a)(1) • Specific convictions of crimes involving dishonesty or false statement: Rule 609(a)(2)

Can an attorney who is using a material to refresh a witness's memory admit that material into evidence? Is authentication of the material required before the material can be used to refresh?

• The proponent may not introduce the writing into evidence. • Authentication of the writing is not required.

Fifth Amendment Privilege against Self-Incrimination - Applies to what kind of Evidence? What can the defendant refuse to do under this privilege and may the prosecutor comment on it?

• This privilege applies only to evidence that is "testimonial," taken on the stand. Presentation of real and demonstrative forms of evidence are not protected. • The accused in a criminal trial has a Fifth Amendment privilege to refuse to take the stand. • Prosecutorial comment. The prosecution many not comment on defendant's refusal to take the stand.

What are the two kinds of immunity?

• Transactional Immunity—Broad: A witness with transactional immunity cannot be prosecuted for the underlying offense. • Use Immunity—Narrow: Statements by the witness may not be used against the them, but the prosecution does not agree that it will never prosecute. The person may be prosecuted upon independent and untainted evidence.

A juror MAY, however, TESTIFY as to:

• extraneous prejudicial information improperly brought to the juror's attention; • whether any outside influence was improperly brought to bear on any juror; or • clerical/secretarial error (i.e., mistakes on the verdict form).

Circumstances in which leading questions may be appropriate on direct examination include:

• hostile witness; • adverse witness; • child witness; • preliminary background information; • to refresh recollection.

Rights of adverse party (opponent) when the other party uses a material to refresh a witness's recollection:

• may inspect; • cross-examine with it; • show writing to the jury for comparison (with witness's testimony); • introduce relevant portions into evidence.

Time limit—how the 10 years is measured: Impeachment with a conviction that is not more than 10 years old is based on either:

• the date of conviction; or • the date of release from confinement, whichever is later (i.e., more recent).

Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided:

• the witness is afforded an opportunity to explain or deny the evidence at some time during trial AND • opposing counsel is afforded an opportunity to interrogate the sponsoring witness, unless the "interests of justice" require otherwise. • If the witness DENIES making the PINS, extrinsic evidence is generally admissible TO IMPEACH. • If the witness ADMITS making the PINS, the witness has the right to explain their answer.

quotient verdict

•In a civil case, jurors can't agree on how much money to award plaintiff, so they take everyone's numbers, add them up and divide that number by twelve and whatever that number is is how much they award.