The doctrine of qualified immunity provides that government officials performing discretionary functions are generally shielded from liability for civil damages as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A defendant asserting qualified immunity has the burden of proving the defense.
Absolute immunity is complete immunity from liability generally afforded to prosecutors, judges, and the president of the United States. Absolute immunity defeats a suit for damages at the outset so long as the official’s actions are within the scope of the immunity.
The Eleventh Amendment prohibits the federal court from granting any relief to a Plaintiff if they name the State as a Defendant in her § 1983 suit. The way to overcome this immunity is for Plaintiff to name the State Officer as a Defendant in his or her official capacity. Then, under Ex Parte Young, the federal court may grant Plaintiff the injunction against the future enforcement of the state law by the State Officer on the grounds that the law violates the federal Constitution. Under the Ex Parte Young doctrine, when a state official acts in an official capacity and violates federal law, that official loses his or her Eleventh Amendment immunity.
The doctrine of qualified immunity provides that government officials performing discretionary functions are generally shielded from liability for civil damages as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A defendant asserting qualified immunity has the burden of proving the defense.
Absolute immunity is complete immunity from liability generally afforded to prosecutors, judges, and the president of the United States. Absolute immunity defeats a suit for damages at the outset so long as the official’s actions are within the scope of the immunity. The Eleventh Amendment prohibits the federal court from granting any relief to a Plaintiff if they name the State as a Defendant in her § 1983 suit. The way to overcome this immunity is for Plaintiff to name the State Officer as a Defendant in his or her official capacity. Then, under Ex Parte Young, the federal court may grant Plaintiff the injunction against the future enforcement of the state law by the State Officer on the grounds that the law violates the federal Constitution. Under the Ex Parte Young doctrine, when a state official acts in an official capacity and violates federal law, that official loses his or her Eleventh Amendment immunity.
A federal court, in the exercise of its diversity jurisdiction, is required to apply the substantive law of the state in which it is sitting, including that state’s conflict of law rules. However, the federal courts apply federal procedural law.
If there is no federal statute or rule on point, it must be determined whether that law on that issue is substantive or procedural to determine what law should be applied.
If it is a matter of substance, the federal judge must follow state law in a diversity case. If it is a matter of procedure, the federal judge may ignore state law.
Some situations, such as statutes of limitations, choice of law rules, and elements of a claim or defense, are well-established as substantive issues, and federal courts must apply state law.
However, if the law’s classification can not be clearly established, the court must use one of the tests to determine if state or federal law should apply. The outcome-determinative test holds that an issue is substantive if it substantially affects the outcome of the litigation.
A federal court has federal question jurisdiction over a suit when the suit arises under the Constitution and laws of the United States and the plaintiff's statement of his own cause of action, on its face, shows that it is based upon those laws or that Constitution.
Under Mottley, a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action, on its face, shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States.
Federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised; (2) actually disputed; (3) substantial; and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress
Pursuant to 28 U.S.C. 1332, federal courts shall have original, diversity jurisdiction over lawsuits where the parties on both sides of the suit are completely diverse, and the amount in controversy exceeds $75,000, exclusive of interest and costs. Complete diversity of citizenship exists if no plaintiff is a citizen of the same state as any defendant.
Concerning individuals, citizenship is determined by their domicile at the time of filing the suit. For an individual to establish their domicile, they must have physical presence with intent to remain in the state. An individual may only have one domicile at a time. The mere residence is not enough. A person retains their original domicile until they establish another. If one represents the interests of another, i.e., infants, incompetents, or decedents, then they retain the citizenship of the one represented.
A corporation is domiciled in its (1) place of incorporation and (2) its principal place of business. The principal place of business refers to where a corporation's officers direct, control, and coordinate the corporation's activities, a nerve center. This is typically the corporation's headquarters.
Unincorporated associations are domiciled wherever the members of the organization are domiciled.
The lack of diversity between any plaintiff and defendant destroys it for all parties.
Jurisdiction is determined at the time the lawsuit is filed. Jurisdiction is unaffected by subsequent changes in the parties' citizenship so long as the court has jurisdiction when the suit is filed.
If a plaintiff later amends a complaint and such a complaint destroys diversity, then the court loses its jurisdiction over that claim.
The amount in controversy must exceed $75,000, exclusive of any costs and interest. The plaintiff’s good faith allegation in his complaint controls the amount in controversy.
A single plaintiff with two or more unrelated claims against a single defendant may aggregate claims to satisfy the statutory amount.
Pursuant to 28 U.S.C. 1332, federal courts shall have original, diversity jurisdiction over lawsuits where the amount in controversy exceeds $75,000, exclusive of interest and costs and suits between citizens of different states.
Concerning individuals, citizenship is determined by their domicile at the time of filing the suit. For an individual to establish their domicile, they must have physical presence with intent to remain in the state. An individual may only have one domicile at a time. The mere residence is not enough. A person retains their original domicile until they establish another. If one represents the interests of another, i.e., infants, incompetents, or decedents, then they retain the citizenship of the one represented.
A corporation is domiciled in its (1) place of incorporation and (2) its principal place of business. The principal place of business refers to where a corporation's officers direct, control, and coordinate the corporation's activities, a nerve center. This is typically the corporation's headquarters.
Unincorporated associations are domiciled wherever the members of the organization are domiciled.
The lack of diversity between any plaintiff and defendant destroys it for all parties.
Jurisdiction is determined at the time the lawsuit is filed. Jurisdiction is unaffected by subsequent changes in the parties' citizenship so long as the court has jurisdiction when the suit is filed.
If a plaintiff later amends a complaint and such a complaint destroys diversity, then the court loses its jurisdiction over that claim.
The amount in controversy must exceed $75,000, exclusive of any costs and interest. The plaintiff’s good faith allegation in his complaint controls the amount in controversy.
A single plaintiff with two or more unrelated claims against a single defendant may aggregate claims to satisfy the statutory amount.
Supplemental jurisdiction is invoked where a supplemental claim arises from a common nucleus of operative fact as the original claim, whether the case got into court by diversity of citizenship or federal question jurisdiction. Essentially, this means that the two claims must arise from the same transaction or occurrence.
For cases that are in federal court based solely on diversity, supplemental jurisdiction may not be used to support claims by plaintiffs against persons made parties under Rules 14, 19, 20, or 24; claims by persons proposed to be joined as plaintiffs under Rule 19; and claims by persons seeking to intervene as plaintiffs under Rule 24.
Federal courts can decline jurisdiction over a claim if it (1) raises a novel or complex issue of State law; (2) substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has already dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances where there is reason to decline jurisdiction.
Paragraph 1:
Shining beacon
'Julia' from 'Romeo and Juliet'
'He would flog her to death with a rubber truncheon' or 'tie her naked to a stake and shoot her full of arrows like Saint Sebastian.' Violent Imagery
a maze of barbed wire entanglements, steel doors, and hidden machine-gun nests' Symbolism
'Mixed up with fear and hatred.’
'slightly disgusting minor operation'
''systematically turned against their parents and taught to spy on them and report their deviations.' Historical allusion
'desire was thoughtcrime.'
'something which a man wants and has not?' Aristotle
'locked loneliness that one had to live.'
'privacy, love, and friendship.'
Subverts Genres and Tropes, even using intertextuality and historical allusion.
Paragraph 2:
If language is about what it means to be human
'You owe me three farthings, say the bells of St Martin's, when will you pay me? say the bells of old Bailey?' 'Astonishment' uncharacteristic
'‘Don’t you see that the whole aim of Newspeak is to narrow the range of thought?'
'Chaucer, Shakespeare, Milton, Byron—they’ll exist only in Newspeak versions... changed into something contradictory of what they used to be.' Paradox
'He is too intelligent. He sees too clearly and speaks too plainly. The Party does not like such people.' Irony
'make thoughtcrime literally impossible'
Orwell uses metalinguistics and the recurring motif of 'Oranges and lemons'
Paragraph 3:'
Illuminating the dark corners of our world
'who controls the past controls the future: who controls the present controls the past' Chiasmus and trochaic pentameter creates a rhythmic cadence.
'ignorance is strength' Subversion of 'knowledge is power'
'All history was a palimpsest, scraped clean and reinscribed exactly as often as was necessary.' Euphamism
'VAPORIZED' 'UNPERSON' Euphamisms
'the claim of the Party to have improved the conditions of human life had got to be accepted, because there did not exist, and never again could exist, any standard against which it could be tested.'
'ALONE in the possession of a memory?'
World building through slogans and phrases
In order for a defendant to remove a suit filed in state court to federal court, the defendant must be able to show that the Plaintiff could have filed the suit in federal court as an original matter.
If the case was eligible, the Defendant must receive the written consent of all oined and properly served defendants the suit. Then, they must file a written Notice of Removal within 30 days of the date on which the Defendant was served with the plaintiff’s state court complaint or other pleading or document that made the case removable. If multiple Defendants, then each defendant has 30 days to file the notice of removal from the date of service.
The written notice must prove a short and plain statement as to why the case should be removed. The Defendants must sign the Notice pursuant to Rule 11 and attach a copy of all state court process pleadings and orders to the notice. The Notice must be filed in the Federal District Court in the district where the state court where the plaintiff filed the initial pleading. The Defendant must serve all adverse parties with a copy of the notice and a memo explaining the reasons why the suit was removed.
The Defendant must serve a written notice to the state court with a memo and other attachments.
If the case is not removable at its outset but later becomes removable, the defendant has 30 days from receipt of the document that makes the case removable.
A plaintiff has 30 days from the date of filing of the Notice of Removal to file his Motion to Remand.
FRE 412: Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
FRE 413: Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).
FRE 414: Similar Crimes in Child Molestation Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.
(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:
(1) “child” means a person below the age of 14; and
(2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;
(B) any conduct prohibited by 18 U.S.C. chapter 110;
(C) contact between any part of the defendant’s body — or an object — and a child’s genitals or anus;
(D) contact between the defendant’s genitals or anus and any part of a child’s body;
(E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or
(F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–(E).
FRE 415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.
FRE 407: Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
FRE 408: Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
FRE 409: Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
FRE 410: Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
FRE 411: Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.
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FRE 401: Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
FRE 402: General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
FRE 404: Character Evidence; Other Crimes, Wrongs, or Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
FRE 405: Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
FRE 406: Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
Rule 401: Evidence is relevant if it has the tendency to make a fact more or less probable than it would without the evidence and that fact is of consequence in determining the action.
Rule 104(a): The judge decides questions of admissibility applying a straight preponderance of the evidence standard. Can consider inadmissible evidence, but not privileged.
Rule 801(c): “Hearsay” means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement
Rule 403: The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
Rule 401: Evidence is relevant if it has the tendency to make a fact more or less probable than it would without the evidence and that fact is of consequence in determining the action.
Rule 104(a): The judge decides questions of admissibility applying a straight preponderance of the evidence standard. Can consider inadmissible evidence, but not privileged.
Rule 801(c): “Hearsay” means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement
Rule 403: The Court may exclude relevant evidence if its probative value if substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, wasting time, or needlessly presenting cumulative evidence
Expert Testimony
To determine whether we need an expert, look to whether a lay witness’ testimony would be OK under rule 701. Nonexpert opinion testimony is limited to one that is: rationally based on the W’s perception; helps us understand W’s testimony or determine a fact in issue; and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Matters of common knowledge do not require an expert and cannot have one. Someone who has particularized knowledge of their own business(business owners or officers)/home will be able to testify as a nonexpert witness about information they know due to the particularized knowledge that the witness has by virtue as a homeowner/position in the business. However, the lay testimony cannot act like that of an expert home appraiser, aware of general market conditions and prevailing mortgage terms and able to evaluate the homes across the community, rather than just a homeowner repeating their value of home. That knowledge is not particularized.
If the question is whether a drug is X identity, it may not require an “expert,” but might require someone who has some experience with X drug. Lay person, with knowledge, can testify based on human experience.
In Civil Cases: Parties are required to disclose their experts in advance along with the report with the opinion they offer, but most lawyers would not try to MIL to exclude a witness if they were just gonna bring a competitng one.
If you need an expert, you must go through the following questions.
Is the expert qualified? The bar is set unbelievably low to make someone an expert and have them testify as an expert: experience, education, training, occupation.
Is the testimony helpful or is it already settled? Not helpful=not admissible.
Did they have sufficient facts to base their testimony on? If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded. This is because the jury will not be permitted to be misled by the glitter of the expert’s accomplishments outside the courtroom.
Does the expert have a “recipe” of reliable principles and methods?
Daubert Five Factors + the sixth negative: was the methodology formula specifically developed for this case? (that wouldn’t help and would make the methodology less reliable)
General Acceptance: general acceptance in the particular field in which it belongs. Explicit identification of a relevant scientific community and determination of degree of acceptance in community.
Peer review and publication: Submission to scrutiny of scientific community is a component of good science b/c it increases the likelihood that substantive flaws in the methodology will be detected. Relevant, but not dispositive.
Known or potential rate of error for the technique.
Existence and maintenance of standards controlling technique’s operation.
Whether it can be and has been tested
This inquiry is a flexible one – these factors are not a checklist or test. They are to be considered when assessing the reliability of scientific knowledge.
Judge has discretionary authority to decide whether methods are reliable and whether the expert followed their own methodology (like in the tire case where there were the signs that would trigger his own recipe were “not significant” enough)
Did they follow the stated methods and principles?
An expert can rely on evidence that is admissible at trial. When a party calls an expert to testify, they are allowed to ask their expert to testify as much or as little as they want about admissible things.
If evidence is inadmissible, the expert can still rely on the info if other experts in this particular field would also reasonably rely on these facts or data. Judge decides if other experts would reasonably rely on it applying a straight prep of the evidence standard. The expert can only disclose the inadmissible evidence (ex. Hearsay evidence learned before trial) if the probative value in helping the jury evaluate the opinion substantially outweighs the prejudicial effect. However, the party that did not call the witness may “open the door” by asking about the underlying facts during XE.
Two major exceptions to the general rule (may be brought in as substantive if they qualify under Rule 803(18), the expert’s reliance on a learned treatise during direct exam or the expert’s acknowledgement of its authority on cross dissolves any hearsay objection to pertinent parts of the document. Additionally, under Rule 803(4), experts are not specifically required to rely on the out-of-court statements. Dr can rely on hearsay b/c life and death decisions are made by physicians in reliance on their patients’ statements and as such those statements should have sufficient trustworthiness to be admissible in a court of law.
Opinion on an Ultimate Issue (this product is defective) is not automatically objectionable. EXCEPT in a criminal case, an expert must not state an opinion about whether the D did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Additionally, cannot give an opinion on D’s credibility. Left to trier of fact.
Common experience of a jury in most cases is sufficient basis for assessment of witness’ credibility, so expert testimony would be inappropriate.
EXCEPTION: It may be appropriate for an expert to explain as a general matter in a counterintuitive way that children may be inconsistent when they about events like sexual abuse. Testimony at issue in this case had to do with how child victims exhibit some patterns of behavior that are seemingly inconsistent with behavioral norms of other victims of assault, including delayed reporting and recantation of allegations of abuse. However, after explaining those general matters, still cannot provide an ultimate opinion on the matter of the witness’s truthfulness.
Reliability of Eyewitness identifications: potentially unreliable in a variety of ways unknown to average juror: experts can be called to clear up the common misconceptions. Eyewitness’s confidence is the most powerful single determinant of whether they will be believed. Average person alo likely to believe those placed in fear are likely to be acutely observant and more accurateGeneralized jury instructions are inadequate to apprise the juror of these ways eyewitness testimony may be unreliable. However, the development of adequate jury instructions is in the sound discretion of trial courts on case-by-case basis.
Experts don’t need to testify from personal knowledge, may testify based on personal observations, facts/data made aware of at the hearing, hypotheticals from the attorneys at the hearing about facts in the evidence (must be enough evid to support a finding that necessary facts exist), competing hypotheticals on cross (also must be enough evid…), info from before the hearing (where hearsay comes into play).
Judges are THE experts of US law. Can only bring experts to talk about the law of foreign states.
The court at its discretion can procure the assistance of an expert of its own choosing.
person's 56% count!). person's 56% count!). person's 56% count!).
defeat French 1759, defeat French 1759, defeat French 1759
defeat their 1759, defeat their 1759, defeat their 1759
George French defeat French their 1759, Washington Custis.
