Evidence IV

701. Non-Technical 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)

701= 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--Expert Witness

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 ]

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)

• Opinion on ultimate issue is okay, Unless:
• --no legal conclusions or No Legal jargon.

• 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.

704--Ultimate Issue Opinion.

1) Exp. may Opine, w/out disclosing basis; [unless CT]

2)Cross → can force disclosure.


705--Disclosure of Basis.

901(a)= Proponent MUST offer → sufficient evidence supporting finding evidence is what he claims; [prima facie ]

*parties can always stipulate.

901(b)(1)--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(b)(5)--Opinion about Voice
• *any W.
• *regardless of how/when the W became familiar w/the voice.

901. Authenticating Evidence

902(1)--Signed+ Sealed + Government Docs.

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 office (driver's handbook).

902(6)--Periodicals

902(7)--Trademarks/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.

Hearsay must be authenticated + satisfy a hearsay objection + and if testimonial in nature → declarant must be subject to cross.

• Original (writing/ recording/ photo ) is required+
• to prove its content. (purpose).
• *unless exception applies.
• 1003--Duplicates;
• 1004--Other Evidence;
• 1005--Public Records;
• 1006--Summary;
• 1007--Party's own Statement against him

1002--Original Required to prove Content.

• Original = writing/recording itself OR counterpart intended to have same effect;
• *if electronically stored info → any printout.
• *photo/video = any print/negative/dvd.

*Duplicate = counterpart + produced by mechanical process + accurately reproduces original. (no handwritten/handcopied copies).

• A duplicate is admissible like an original, unless:
• 1) original's authenticity is genuinely questionable;
• 2) circumstances make admission of duplicate unfair.

1003--Duplicates Exception to Best Evidence Rule.

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.

• 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

• Summary/Chart/calculation+
• voluminous subject +
• Must make available (originals or duplicates) to all parties+
• Court can order production in court.

1006--Summary exception to Best Evidence Rule.

May prove content of writing/recording/photo by w/out the original if:

• 1) Testimony/Deposition/Written Statement;
• 2) of party against whom it's being offered.

1007--party's own statement to prove content + if offered against him.

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.

1008--Court/Jury Roles

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:
• 1003--Duplicates.
• 1004--Other Evidence (if 1 of 4 circumstances occur)
• 1005--Copy of Public Records
• 1006--Summary
• 1007--Testimony or Statement of Party

Permissive--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.

• 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.

• Exceptions:
• * 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.