![]() So, you really have to delve deeply into the California jurisprudence, I guess, to find out if there’s some further limitation that doesn’t apply to the other iterations of the statute. California is a little bit unique in the sense that it has a further limitation that I don’t know if it’s a distinction with a difference or not but says, “as permitted by law,” whatever that means. And two states, New York and Missouri, are governed by common law, and five of these states, interestingly California in particular, have what I call “outlier rules” because they had language that you don’t find in the other rules. Twenty-one states contain the first two components, but not the third component, which is not based on expert knowledge. Well, 22 states utilize statutes containing the same three components in the Federal Rules of Evidence. States Adoption of Federal Rules of Evidence And the third, of course, is that it may not be based on scientific, technical or other specialized knowledge and of course this eliminates the risk that the reliability requirements of Federal Rule of Evidence 702 governing expert witnesses won’t somehow be subverted by laying in, so to speak, lay witness opinion testimony when it’s not being tested by the appropriate standards under the Federal Rule of Evidence 702. And so, the adversarial system steps in as the break to the liberal standard of allowing the evidence in. But the thought here is that lay witnesses often have difficulty expressing themselves in language which is not a conclusion or which is not an opinion, and so the bar is set low on the admissibility of that evidence, but it is tested, of course, by cross-examination. Two, it must be helpful to clearly understand the witness’s testimony or to determine a fact in issue, which of course is a very liberal standard helpful to determining something. The first, of course, is that the opinion or testimony must be rationally based upon the witness’s perception, and what’s really being driven at there - and you’ll see throughout my presentation - is that a lay witness, to provide an opinion, has to be speaking from personal knowledge, has to be testifying to observations and thereby drawing their conclusions or their opinions from those personal observations. The great majority of the states use some iteration of Federal Rule of Evidence 701 and there are three components to that rule that you will find in every state whether or not it has adopted the iteration of Federal Rule of Evidence 701 or the common law has added them through those elements in that state. And first, what I’d like to do is talk a little bit about the variation of the rule depending upon the jurisdiction that you’re in. But there are, however, some very interesting observations that I’d like to point out to you today. And I say that because this, perhaps, is one of the most uncontroversial topics that I have ever looked at and in fact, it may be so lacking in controversy that someone might question why I delved so far into this. It leads us to statements and ideas that we’ve never had before. ![]() The presentation, it peels back the onion of all of the issues and the intricacies of the topic that we’re analyzing, and in the end, it leads us to a conclusion. The presentation anticipates the next revelation of the subject matter. ![]() Let me first start with this, and that is that any good presentation, of course, has at its heart a controversy or conflict that keeps us on the edge of our intellectual seats. One of those is lay witness opinion testimony, and our subcommittee member who will speak on that is Tom Karr. The Evidence Subcommittee of the Fiduciary Litigation Committee of ACTEC is presenting a program on commonly encountered evidentiary issues. To give us more information on this topic, you will be hearing today from ACTEC Fellows Jamie Pressly of Palm Beach, Florida and Tom Karr of Miami, Florida. This is Margaret Van Houten, ACTEC Fellow from Des Moines, Iowa. “Lay Witness Opinion Testimony,” that’s the subject of today’s ACTEC Trust and Estate Talk. ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |