LAW
Evidence Outline.docx

An opinion on the subject they need not be admissible

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an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Two Permissible Bases of Expert Testimony Page 34 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar o Firsthand Observations of the Witness “An expert may base an opinion on facts or data in the case that the expert has . . . personally observed.” Before the trial (e.g. a doctor examination) or At the trial (i.e. observing other evidence and testimony). o Secondhand Information “An expert may base an opinion on facts or data in the case that the expert has been made aware of . . . .” Before the trial (information not produced as evidence on which experts in the field reasonably rely; e.g. doctor examining P’s medical records or reading research studies by scientists about a particular disease) or At the trial (via hypothetical questioning) “Reasonably Relied On” o This is a question for the judge under 104(a). o This can be a Frye or Daubert question depending on the jurisdiction. The Underlying Facts or Data o If the underlying facts or data would not be admissible, they can only be admitted if their probative value is substantially outweighed by their prejudicial effect. o 705. Disclosing the Facts or Data Underlying an Expert Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it— without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. o In connection with 703. This rule changes the common law, which was that the expert witness had to give the underlying data or facts before giving the opinion. However, the hypothetical questioning used in secondhand expert testimony at trial necessarily requires disclosure of the underlying facts. Opinions on Ultimate Issues 704. Opinion on an Ultimate Issue o (a) In General—Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. o (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did Page 35 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. It is still not appropriate to: o tell the fact finder what conclusion to reach; o testify to opinions respecting issues reserved exclusively for the jury, such as the credibility of the witness; o testify to opinions embracing legal conclusions, which are reserved exclusively for the court.
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