CHAP. 9 :
OPINION EVIDENCE
P. JANICKE
2012

OPINIONS ARE GENERALLY
INADMISSIBLE
• RULE 602 REQUIRES ACTUAL
“KNOWLEDGE” FOR MOST TYPES
OF EVIDENCE
• SINCE KNOWLEDGE IS ILL-DEFINED
CONCEPT, THE LINE BETWEEN
KNOWLEDGE AND OPINION IS ILL
DEFINED
2012 Chap. 9 -- Opinion Evidence 2

OPINIONS
• ABOUT 98% OF WHAT WE THINK
WE “KNOW”
• OPINIONS CONSIST OF:
– FACTS LEARNED FROM OTHERS WHO
MAY KNOW THEM
– CONCLUSIONS WE HAVE DRAWN
FROM OUR OWN OBSERVATIONS
2012 Chap. 9 -- Opinion Evidence 3

THE 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 ANALYSIS
• SOME KINDS OF OPINIONS ARE
ADMISSIBLE
2012 Chap. 9 -- Opinion Evidence 4

OPINIONS OF NON-EXPERTS
RULE 701
• ALLOWED IF:
1. RATIONALLY BASED,
2. BASED ON A PHYSICAL PERCEPTION
BY THE WITNESS, AND
3. HELPFUL TO THE TRIER OF FACT
2012 Chap. 9 -- Opinion Evidence 5

• “HELPFUL” MEANS THERE’S NO
OTHER FEASIBLE WAY TO CONVEY
THE WITNESS’S OBSERVATION
• IF STATING A FEW FACTS GIVES
THE PICTURE, THE OPINION IS
DISALLOWED
2012 Chap. 9 -- Opinion Evidence 6

EXAMPLES OF ADMISSIBLE
OPINIONS
• HE WAS DRUNK
• HE WAS UPSET
• SHE WAS NERVOUS
• SHE WAS ANGRY
ALL REQUIRE FOUNDATION OF
PHYSICAL PERCEPTION
2012 Chap. 9 -- Opinion Evidence 7

FURTHER EXAMPLES
(TRADITIONALLY ALLOWED)
• INSANITY
• HANDWRITING
BOTH REQUIRE FOUNDATION OF
PHYSICAL PERCEPTION
2012 Chap. 9 -- Opinion Evidence 8

• 9A
• 9B
PROBLEMS/CASES
2012 Chap. 9 -- Opinion Evidence 9

EXPERT OPINIONS
(RULE 702)
• SPECIAL KNOWLEDGE OR
EXPERIENCE IN SOME AREA
2012
– SCIENTIFIC, BUSINESS, ARTS, CAR
REPAIR, ETC., ETC.
– CRIME DETECTION IS A
CONTROVERSIAL AREA
Chap. 9 -- Opinion Evidence 10

EXPERT’S METHODOLOGY
MUST BE RELIABLE
• CHECKED INITIALLY BY THE JUDGE
BEFORE TRIAL
• IF JUDGE FINDS RELIABLE
METHODOLOGY, EVIDENCE IS
ADMITTED FOR JURY EVALUATION
• JURY MAY FIND METHODOLOGY
WAS UNRELIABLE AND GIVE IT NO
WEIGHT
2012 Chap. 9 -- Opinion Evidence 11

JUDGE AS GATEKEEPER
• IF JUDGE FINDS METHODOLOGY
RELIABLE: JUDGE IS NOT A
FACTFINDER
• SHE IS A SCREEN ON WHAT GETS
THROUGH TO THE JURY
• BUT: IF THE JUDGE FINDS
METHODOLOGY UNRELIABLE, THE
FINDING IS FINAL – JURY NEVER
HEARS THE EVIDENCE
2012 Chap. 9 -- Opinion Evidence 12

SAME ROLE AS
[NEARLY]
ALWAYS
• JUDGE IS A SCREEN FOR
EVIDENCE
• POSITIVE FINDING ISN’T
DETERMINATIVE
– EXCEPTION: JUDICIAL NOTICE IN A
CIVIL CASE
• NEGATIVE FINDING SHUTS OFF THE
EVIDENCE
2012 Chap. 9 -- Opinion Evidence 13

PROBLEMS/CASES
• 9C
• Daubert
• DuPont [see posted materials]
• 9D
2012 Chap. 9 -- Opinion Evidence 14

OPINION ON AN ULTIMATE
FACT [R. 704]
• THE OLD CLICH É: “INVADING THE
PROVINCE OF THE JURY”
– WAS NONSENSE
• NOW GENERALLY ALLOWED, IF
OTHERWISE IN COMPLIANCE WITH
RULES
2012 Chap. 9 -- Opinion Evidence 15

• EXCEPTION (FEDERAL RULE):
STATE OF MIND OF CRIMINAL D.
– THE OLD CLICH É SURVIVES HERE
– USUALLY SANITY IS INVOLVED
– EXPERT MUST STAY ONE-STEP-BACK
• TEXAS RULE: DOES NOT HAVE THE
EXCEPTION; CAN ALWAYS GO TO
THE BOTTOM LINE
2012 Chap. 9 -- Opinion Evidence 16

COURT-APPOINTED EXPERT
(RULE 706)
• GOOD IN THEORY
• LITIGATORS CRINGE!
2012 Chap. 9 -- Opinion Evidence 17

STIPULATING EXPERTISE OF
YOUR EXPERT WITNESS
• OFTEN VOLUNTEERED BY
ADVERSARY
• SELDOM ACCEPTED
– WOULD REMOVE DRAMA
– NO FEAR OF OBJECTION
2012 Chap. 9 -- Opinion Evidence 18

PROBLEMS/CASES
• Exercise #8
• Film Clip from My Cousin Vinny on expert witness testimony
2012 Chap. 9 -- Opinion Evidence 19