The line between lay and expert opinion

This Tenth Circuit case, beginning on page 20. The court offers a nice standard for what inferences are permissible under 701 and when they are grounded in expertise requiring qualification under 702. At issue was a company CEO's testimony about lost profits for calculating damages in a breach-of-contract case and whether it was based on his observations and knowledge as CEO (and thus constitutes lay opinion) or whether it relied on more complex math, experience, and expertise (and thus his qualification as an expert).

It is worth noting that similar problems arise with law-enforcement testimony. Officers go back and forth between lay and expert testimony without expert qualification, often without the court closely monitoring this movement.

For Monday

Tuesday audio. Make-up session 12:30-1:45 Monday in RD 2006.

Prep the remaining sections of Impeachment: Character, PIS, and Review. If we do not get through this on Monday, we will on Tuesday.

We will begin with the last step in the 608 process involving Tom, Ira, and Andrew. Spend some time on the structure of the pieces of FRE 608 and how this impeachment operates. Consider ## 75, 76, 78, and 79 together as different paths on the same issue; we will go through it in a slightly different order. Consider who each witness in the problems corresponds to. What must the proponent show to admit a specific instance of conduct under 608(b) and which rule (104(a) or (b)) guides that? What is the inference at work in FRE 609? What is the order for analyzing FRE 609(a), in terms of the elements to consider and when?

If we finish Impeachment on Tuesday as I expect, the preliminary exam will post at noon Tuesday and due in class on Tuesday, October 10. More details forthcoming, but the exam will consist of seven short essay questions.

For Tuesday

Tuesday audio. No class Monday; g'mar tov to those observing. We will hold the make-up from 12:30-1:45 on Monday, October 2 in RDB 2006.

Continue Introduction to Impeachment, including the assigned problems. We will continue with the remaining five issues for credibility. The first nine (discussed in class) are non-collateral. Five remain. Read FRE 608(a) and (b) with care and try to work out the process through which a witness can be impeached (or accredited) on character for truthfulness. Note that character for truthfulness is one sub-part of witness credibility--the broad issue is "whether the witness is lying," whereas character offers one way to show "he is a liar therefore he is lying."

For Tuesday

Tuesday audio.

We continue with Witnesses and the associated problems. Consider the roles of three actors: The witness (bound by FRE 602 and 701), the attorney, and the factfinder; what inferences or guesses can each draw and how? Consider the admissibility of two pieces of testimony in a negligence case alleging defendant was impaired by alcohol:

    1) Witness says "Defendant was drunk."

    2) Witness says "Defendant was under the influence of alcohol."

Then move to Impeachment: Introduction to Impeachment; do the Rules and the CS reading. From the reading, pull out two distinctions: 1) Collateral issues v. Non-Collateral issues; 2) Extrinsic evidence v. Non-Extrinsic Evidence. What does each mean and how do they relate to one another. The CS reading breaks down numerous pieces of credibility--we will expand on that in class. Also, review your notes from earlier in the semester about the trial process.

Finally, a word on demeanor evidence. As we said in class, it raises problems. The nonverbal cues do not reliably indicate truthfulness or untruthfulness as much as something else--nervousness or discomfort or pressure about being in court, etc. And many nonverbal cues and the conclusions we draw from them play on stereotypes or biases about race and gender.

In this case, the state court of appeals reviewed (and reversed) a restraining order barring a woman (the defendant) from posting certain information about her estranged husband (the plaintiff) in the midst of a rancorous divorce. The trial court served as factfinder in issuing the restraining order. This from pp. 10-11:

In an oral decision supporting the issuance of the FRO, the judge found plaintiff credible and defendant not credible based on "demeanor," "body language," and the content of the testimony. Specifically, the judge remarked that plaintiff's "demeanor was straightforward," "[h]e didn't embellish" his testimony, "[h]e didn't fidget" while testifying, and his "testimony ma[d e] sense." Conversely, according to the judge, defendant's "testimony didn't make much sense," particularly since she claimed she made the video for the rabbinical judges but addressed the plea in the video to anyone who could help her. Additionally, the judge pointed out that during questioning, defendant was "looking all over the room" and "there was a blank look in her face." 

In a footnote at the end of this ¶, the court of appeals noted that "there was no request for recusal" of the trial judge--a strong hint that the court of appeals believes the trial judge was biased in how it evaluated the witnesses and perhaps should have been recused. The court of appeals resolved the case on First Amendment grounds, so the credibility of each witness did not affect the outcome on appeal. Still, the trial court's language reveals the concerns over demeanor evidence.

Moral hazard (from Casey Esch)

Casey turns to Friends to illustrate the moral hazard inference that FRE 411 rejects:

For Monday

Tuesday audio.

We continue with the Sexual Assault rules. What is the purpose of FRE 412, as a matter of the truth-finding process and as a matter of external policy goals? Then turn to FRE 413-415. Again, consider why we have these rules and whether that rationale makes sense. Note the process by which these rules came to be and compare with unenacted FRE 404(a)(4) and FRE 405(c).

Prep Relevancy Review. We will work through some of those problems as a capstone to Relevancy.

Then move to Witnesses, with a focus on FRE 601-602 and FRE 701. What does FRE 701 mean by "opinion?" What are the different things that a factfinder, an attorney, and a witness can do with a piece of information?

For Tuesday

Monday audio.

We continue with Policy-Based Exclusions, covering FRE 407-409 and 411 (skip 410). Note that FRE 408 is very confusing in its text, so take the time to parse it out. We start with how FRE 407 affects the evidence about Ross telling Kerry not to make accusations but to come to him when she has concerns. Prep the remaining problems for this section. Please note, by the way, that the policy of a rule does not determine whether evidence comes in or not; the text of the rule decides that. The policy justifies the rule and perhaps gives guidance as to what the text means and how to apply it. But don't look to the policy, rather than the text, in arguing and deciding an evidentiary issue.

We move to Special Rules in Sexual Assault, covering FRE 412 (the rape-shield) and FRE 413-415 (other acts of sexual assault and child molestation). How do these rules fit together? What is their purpose or policy goals; do they achieve those goals; and do those goals make sense? Why make special rules for sexual assault? What does "sexual predisposition" entail?

Some further points on other acts evidence

Two additional things worth thinking about FRE 404(b)(2) and other crimes, wrongs, or acts.

1) The permissible use a party will argue for other acts evidence may depend on which act is charged and which act is used as evidence. Recall the examples from class: As between a bank robbery and funding terrorism, whether it is plan, preparation, or both depends on whether government charges the robbery or the funding. As between bank fraud and murder of a witness, whether it is motive, consciousness of guilt, or both depends on whether government charges bank fraud or murder.

But that opens a way for a proponent of evidence (especially a prosecutor) to get around FRE 404(b) problems--charge all acts.That way, all acts are charged and none are evidential. The prosecutor can charge both bank fraud and killing the witness, making both charged rather than evidential acts

2) Here is a bit of "reverse 404(b)(2) identity" from the 1985 film The Jagged Edge. The woman lawyer is defense counsel for a man charged with murdering his wife in a specific and sexually ritualistic way. The defense calls a witness who was the victim of an identical specific and sexually ritualistic crime (the description in the testimony is very graphic). The defense is obviously trying identity--whoever committed the prior assault committed the charged murder and that person is someone other than the defendant. From the clip, what is the argument for and against admitting this testimony, given the two steps in the 404(b)(2) analysis? (Ignore the part where the defense asks about conversations with the DA).

For Monday

Tuesday audio.

We pick up with Habit and Routine Practice and Question # 40 and working through the remainder of the problems. To clarify something: FRE 403 is an automatic part of the habit analysis, as the courts ensure that habit is not defined so broadly as to undermine FRE 404(b)(1).

We move to Policy-Based Exclusions. For Monday, prep FRE 407--Problems 45-46, and CS § 4.1-4.2; for Tuesday, prep the entire section. Each of these exclusions can be justified as improving the truth-finding process and as serving public policies extraneous to litigation; identify both rationales for each of these rules. Consider the role FRE 403 plays in each of these. Consider how FRE 407 applies in the following products-liability cases:

    π purchases a product in 2020; the accident occurs in 2021; the company redesigns the produc in 2022.

    π purchases a product in 2020; the company changes the product in 2021; the accident occurs in 2022.

    π purchases the product in 2020; the accident (caused by defects in the steering system) occurs in 2021; the company redesigns the braking system in 2022.