The judiciary should bear in mind that the real basis for distinguishing between lay and expert opinion testimony is whether the opinion rests in part on vicarious experience. This is because “uch testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson’s personal knowledge.”…Similarly, Professor Imwinkelried (who is cited several times by the United States Supreme Court in Daubert) explains that in drawing the line between lay and expert testimony, 701 advisory committee’s note to 2000 amendment. The Advisory Committee Notes to Rule 701 prove instructive on this point, distinguishing between specialized knowledge within the scope of Rule 702 and personal knowledge: “courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established.” Fed. 701(emphasis added)…he question is not whether the opinion requires specialized knowledge, as all opinion testimony does, but whether the specialized knowledge is sufficiently specialized to fall within the scope of . The text of the Federal Rules…it specifies that lay opinion testimony is not based on “ specialized knowledge within the scope of Rule 702.” Fed. While the final sentence about “only a suicidal skydiver” is blatant opinion evidence, and probably not “helpful,” is the rest purely factual and if not, is it lay or expert? Consider the words “probably prepared for the jump the wrong way, because there were cords wrapped around one side of the chute, which would have prevented it from inflating properly.” Fact mixed with opinion for sure, but lay or expert?Ī review of caselaw only begins to give an answer but at least provides the tools for good advocacy on both sides of the argument. Only a suicidal skydiver would jump without the Slinks properly installed! In order for the reserve to work, you need these particular pieces to work, the SLinks, which allow the cables to activate and move from the pulling cord to the emergency cords on each side of the skydiver body, over the shoulders. The main parachute was probably prepared for the jump the wrong way, because there were cords wrapped around one side of the chute, which would have prevented it from inflating properly. The officer examined the parachute worn by the injured jumper, found that certain parts were mishandled and/or missing, and concluded that The officer was also a parachutist who had jumped numerous times. This inquiry was provoked by students in a mock trial competition where a police officer was investigating an accident that severely injured a parachutist. Consider the bicyclist – the person has experience but no real specialized knowledge but on the other hands the community of non-bicyclists might not know this. When the brake pads start to wear down, it’s riskier to ride in the rain.” Now, what is that? Expert or lay opinion?Īnd why do we care? Because to proffer expert opinion evidence notice and discovery requirements must be met and the judge’s gatekeeping role has particular significance. “The DNA profile from the crime scene shares the same alleles as the DNA from the accused.” That is a statement of fact or an expert opinion, but whatever it is it is not lay opinion.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |