Opinions and expert testimony - Next Generation Bar Exam

1. Under FRE 704(b), what may an expert not state in a criminal case?

   An opinion on whether the defendant had a mental state that is an element of the crime or defense. Under Diaz v. United States, an expert may testify about what most people in a group know, without addressing the defendant's own state.

2. A witness testifies that the driver 'seemed drunk' because he slurred his words and staggered. What is the status of the testimony?

   It is admissible lay opinion under FRE 701. Intoxication is a common subject of lay opinion based on perception.

3. Under General Electric Co. v. Joiner, what standard of review applies to a trial court's ruling on expert testimony?

   Abuse of discretion. A court may exclude an opinion if there is too great an analytical gap between the data and the conclusion.

4. What standard governs the admissibility of expert testimony in states that follow Frye v. United States?

   General acceptance of the method in the relevant scientific community. Some states retain Frye, while federal courts apply Rule 702 and Daubert.

5. Under FRE 706, what may the court do regarding experts?

   Appoint its own expert witness. The court may disclose to the jury that it appointed the expert.

6. What factors did Daubert identify for assessing scientific reliability?

   Testing, peer review and publication, error rate and standards, and general acceptance. The factors are flexible and nonexclusive.

7. Under FRE 702, as amended in 2023, what must the proponent show to admit expert testimony?

   By a preponderance, that the testimony is helpful, has sufficient basis, uses reliable methods, and reflects reliable application. The amendment clarified that these are admissibility questions for the court, not weight questions for the jury.

8. In an insanity defense case, a defense psychiatrist proposes to testify that the defendant could not appreciate the wrongfulness of his conduct. What rule bars the testimony?

   FRE 704(b). The expert may describe the defendant's diagnosis and symptoms but not state the ultimate conclusion on the mental-state element.

9. Under FRE 701, what are the requirements for lay opinion testimony?

   Rationally based on perception, helpful to the jury, and not based on specialized knowledge within Rule 702. The third requirement prevents evading expert reliability requirements.

10. Under Kumho Tire Co. v. Carmichael, to what does the Daubert gatekeeping obligation apply?

    All expert testimony, including technical and other specialized knowledge. The trial court may tailor the Daubert factors to the type of expertise.

11. Under Daubert v. Merrell Dow Pharmaceuticals, what is the trial court's role regarding expert testimony?

    To act as gatekeeper, ensuring the testimony is relevant and reliable. Daubert replaced the Frye general-acceptance test in federal courts.

12. Under FRE 703, on what may an expert base an opinion?

    Facts or data the expert has been made aware of or personally observed, including inadmissible facts reasonably relied on in the field.

13. Under FRE 705, when must an expert disclose the underlying facts or data before stating an opinion?

    Only if the court orders; the expert may be required to disclose them on cross-examination. Hypothetical questions are no longer required.

14. Under FRE 704(a), what is the status of an opinion on an ultimate issue?

    It is not objectionable just because it embraces an ultimate issue. Opinions that merely tell the jury what result to reach may still be excluded as unhelpful.

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