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701--Lay Witness Opinion
701. Non-Technical Opinions:
701= Lay Opinions.
- 1) Rationally based on W's perception;
- 2) Helpful to the jury's understanding the testimony or a fact in issue;
- 3) Not technical/specialized knowledge. (even experts can have lay opinions)
702. Qualified expert W may testify in the form of an opinion if:
1) Helpful to trier of fact (understand evidence or det.some fact)
2) Based on Sufficient facts/data;
3) the Product of Reliable principles & methods (daubert hearing)
4) Reliably applied principles/methods to facts of the case.
*expert--anyone who specializes, understands, by skill, experience or training..etc..* qualify by foundation; stipulation; judicial notice.
*reliable Methods/Principles: (1) tested? (2) peer reviewed; (3) known error rate: (4) relevant community acceptance?(5)formulated w/an eye toward litigation?
702. Qualifying an Expert W
1) Foundation (through a series of qs) + Voir Dire by opponent + Impermetur (judicial finding)
2) Stipulation (if both parties agree)
3) Judicial Notice (generally known in jx. or accurately and readily determined by sources cant be reasonably questioned.). [R. 201 ]
703. Basis of Expert Testimony.
1) Personal Knowledge, or made aware of; (any fcts/data);
2) relevant field experts would rely on same fcts/data to form opinion;
3) if facts/data is inadmissible ⇾ proponent may disclose ONLY if Probative value of helping jury evaluate experts' opinion Substantially Outweighs Prejudicial Effect.
4) Opponent (R.705) can always force disclosure.
703-Basis of Opinion (experts)
704--Ultimate Issue Opinion
- Opinion on ultimate issue is okay, Unless:
- --no legal conclusions or No Legal jargon.
704--Ultimate Issue Opinion.
- If Criminal Case +
- Expert W+
- Mental State/Condition is element of charged offense+
- = Must not state opine on whether Δ did or did not have the state/or condition.
705--Disclosure of Basis of Expert's Opinion
1) Exp. may Opine, w/out disclosing basis; [unless CT]
2)Cross → can force disclosure.
705--Disclosure of Basis.
901--Authenticating of Evidence
901(a)= Proponent MUST offer
→ sufficient evidence
supporting finding evidence is what he claims
; [prima facie ]
*parties can always stipulate.
--Testimony of W w/Knowledge
- --chain of custody relevant if evidence is fungible (nt unique)(even if problem w/chain, still admitted if no signs of tampering]
- --Photo/video = any W/ familar enough w/underlying scene + accurately portrays scene at relevant time.
- 901(b)(2)--Lay Opinion of Handwriting
- *Lay W familiar w/handwriting before Litigation. [must]
- 901(b)(3)--Comparison (expert or trier of fact)
- *w/verified sample.
- 901(b)(4)--Distinctiveness + Circumstances;
- --response letter that references the original sender's letter...example,
901. Authenticating Evidence
- 901(b)(5)--Opinion about Voice
- *any W.
- *regardless of how/when the W became familiar w/the voice.
902. Self-Authenticating Evidence
902(2)--Signed + Certified
+ Public Office record.
902(3)--Public Foreign Docs
+ Foreign official Signed + Consular Certified.
902(4)--Certified copy of any official record
902(5)--Official Publications by Public offic
e (driver's handbook).
/signs/labels + fixed in course of business + indicating ownership/control.
902(11)-- Business Record
(regularly kept+ regularly recorded activity+ made at or near the time by insider).
- 902(12)--Certified + Foreign record of + Regularly Conducted Activity.
- *Only in Civil Cases;
- *Only if signing falsely if foreign country subjects signer to criminal penalty.
Certification + Hearsay + 6th Amendment.
Hearsay must be authenticated + satisfy a hearsay objection + and if testimonial in nature → declarant must be subject to cross.
1002--Best Evidence Rule
1002--Original Required to prove Content.
- Original (writing/ recording/ photo ) is required+
- to prove its content. (purpose).
- *unless exception applies.
- 1004--Other Evidence;
- 1005--Public Records;
- 1007--Party's own Statement against him
1001--Best Evidence Defined
- Original = writing/recording itself OR counterpart intended to have same effect;
- *if electronically stored info → any printout.
- *photo/video = any print/negative/dvd.
= counterpart + produced by mechanical process + accurately reproduces original. (no handwritten/handcopied copies).
1003--Duplicates Exception to Best Evidence Rule.
- A duplicate is admissible like an original, unless:
- 1) original's authenticity is genuinely questionable;
- 2) circumstances make admission of duplicate unfair.
1004--Other Evidence (testimony/hand copy) Exceptions
Original is not required & other evidence may be admissible if COURT determines (R. 1008) :
1) Lost or Destroyed; (No proponent bad faith)
2) No Judicial Process help; (in foreign jx)
3) Opponent Control; (opponent controls+ has notice of its importance + refuses to produce);
4) Collateral Issue. (minor circumstantial or impeachment issue).
1004--Other Evidence Exception to best Evidence.
1005--Public Record Copy proves Content
- Copy +
- Official Public Record +
- Certified, or testified to be correct by W who compared it to original.
* Ct--determines if factual conditions are met. (r. 1008)
1005--Public Record Copy
1006--Summaries to prove Content
- voluminous subject +
- Must make available (originals or duplicates) to all parties+
- Court can order production in court.
exception to Best Evidence Rule.
1007--Party's Own Statement Against him (exception to best evidence rule)
May prove content
of writing/recording/photo by w/out the origina
1007--party's own statement to prove content
- 1) Testimony/Deposition/Written Statement;
- 2) of party against whom it's being offered.
+ if offered against him.
1008--Court & Jury Roles:
Ct = decides if factual conditions are satisfied to admit "other evidence
- Jury determines whether:
- 1) writing/recording/photo ever existed;
- 2) one produced is an original;
- 3) other evidence accurately reflects content.
Best Evidence RoadMap
1) Writings; Recordings; Photographs?
- 2) Purpose Offered is to prove its Content?
- [*this is broader than hearsay, which is offered to prove its content + truth of the content].
- 3) Must Introduce O/G, unless:
- 1004--Other Evidence (if 1 of 4 circumstances occur)
- 1005--Copy of Public Records
- 1007--Testimony or Statement of Party
--allow juries to infer one fact fomr another + comes w/ jury instruction. ("may" language by the judge only).
- Mandatory (rebuttable):
- * Bubble Bursting (burden of Production)
- -once P introduces evidence as to each element of his claim = D must introduce ANY contrary evidence.
* ONLY in Civil Cases
606(b)--Inquiry into validity of Verdict/Indictment
- 1) Once Verdict/Indictment is handed down →
- 2) Prohibited:
- * Testimony of Matters that Inhere in the Jury Room:
- * Affidavits; nor other Evidence.
- a) statement/incident in the jury room;
- b)effect of anything on his or norther's vote;
- c)any juror's mental process.
- * Non-Jury persons can testify.
- * Extraneous prejudicial information + improperly brought to jury's attention
- * Improper Outside influence on any juror;
- --originates outside the jury room + can only ask to describe source not how it affected the juror's thought process.
- * Mistake entering the verdict.