Term
| Distinguish the "first hand knowledge requirement" of lay opinion from the hearsay rule. |
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Definition
1) W's statement on its face makes it clear that W is merely repeating what someone else said; the objection is hearsay
2) W puports to be stating matters which he personally observed, but he is actually repeating statements by others, the objection is lack of first hand knowledge |
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Term
| Does the rule requiring first hand knowledge apply to experts? |
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Definition
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Term
| FRE view is that non-expert witness may testify to facts and opinions only if the opinions... |
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Definition
| have value to the fact finder |
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Term
| Are opinions on ultimate issues allowed for non-expert witnesses? |
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Definition
| Yes; except where the mental state of a criminal defendant is concerned |
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Term
| What are the 5 requirements expert testimony must meet in order to be admissible? |
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Definition
1) Scientific, technical or specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue
2) The witness must be qualified as an expert by knowledge, skill, training, experience or education
3) Testimony must be based on suficient facts or data
4) Testimony must be the product of reliable principles and methods
5) The witness must have applied the principles and methods reliably to the facts of the case |
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Term
| May an expert rely on otherwise inadmissible evidence? |
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Definition
| Yes; if the evidence is of a type reasonably relied upon by experts in a particular field in forming opinions or inferences on the subject |
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Term
| What is the rule for disclosure of inadmissible facts relied upon by expert in forming his opinion? |
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Definition
| Expert and the proponent of the experts testimony shall not disclose those facts or data unless the court affirmatively finds that their probative value outweighs their prejudicial effect (reverse 403) |
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Term
T or F
The cross examiner is not allowed to request the expert to state the facts on which he has relied? |
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Definition
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Term
| Are experts allowed to be cross-examined by use of a learned treatise that contains a different view? |
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Definition
yes; also allowed for impeaching evidence even if the expert didn't rely on it -
Federal rules allow the treatise to be used substantively and for impeachment |
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Term
T or F
In order to qualify as an expert witness, the witness must have either experience or specialization in the field? |
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Definition
False-
Neither experience, or specialization is required-
Just has to have 1 of the following (SKEET)
1) knowledge
2) skill
3) education
4) training
5) experience |
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Term
| Who determines if a person qualifies as an expert? |
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Definition
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Term
Criminal case; an expert gives an opinion based on hearsay "I consulted expert 2 on the facts of this case and they concur"
The court determines that the information's probative value substantially outweighs it's prejudicial effect.
Will the otherwise inadmissible underlying data get in? |
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Definition
| Probably not; here you have a confrontation clause issue- exluded; no opportunity to cross and used against a criminal defendant. |
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Term
| What are the 3 requirements in order for lay-opinion testimony? |
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Definition
Opinion must be...
1) rationally based on perception of the witness
2) helpful to a clear understanding of the witness testimony or a determination of a fact in issue
3) not based on scientific, technical or specialized knowledge |
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Term
| Is speculation allowed in lay-opinion testimony? |
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Definition
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Term
| Can the basis of an expert opinion be used substantively? |
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Definition
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Term
| When are the underlying facts of an expert opinion admissible? |
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Definition
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Term
| What are the 2 tests in determining the validity of scientific evidence? |
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Definition
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Term
| What test does California follow in determining the validity of scientific evidence? |
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Definition
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Term
| What is the Frye Standard? |
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Definition
General acceptance in the field in which it belongs
2) hearing concerns general acceptance |
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Term
| Is the validity of scientific evidence using the Daubert standard a question for the judge or jury? |
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Definition
| Judge/ 104 (a) determination |
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Term
| What are the 5 factors a judge uses under the Daubert Standard |
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Definition
1) Theory/technique has been tested?
2) subject to peer review and publication
3) rate or error
4) standards and controls
5) generally accepted in the scientific community |
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Term
| Who holds the burden of establishing admissibility under the Daubert Standard and what is it? |
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Definition
| Proponent, preponderance of the evidence. |
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