2017 EVIDENCE & PROCEDURE SEMINARMarch 9 (Loews Hotel) and March 10 (Windsor Court Hotel)

PRIEUR, PROFFER, AND ALL THAT JAZZ: BACK TO BASICS ON EVIDENCE

JUDGE MADELEINE LANDRIEU (moderator) 4th Circuit Court of Appeal

PROFESSOR MICHAEL R. FONTHAM Tulane University Law School

PROFESSOR SHENEQUA GREY Southern University Law Center

PROFESSOR BOBBY MARZINE HARGES Loyola University New Orleans College of Law

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HEARSAY

“Hearsay” is a statement, other than one made by thedeclarant while testifying at the present trial or hearing, offered in evidence to prove the truth ofthe matter asserted.

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:1. that you have a statement (within the meaning of the rule);

2. that the statement was made outside of the present trial or hearing;

3. the declarant must be a person;

4. the statement must asserts something; and

5. the statement is being offered to prove what the statement asserts.

1. Identify the statement (oral, written, assertive conduct by a person).

2. Determine what is being asserted in the statement.

3. Determine what the statement is being offered into evidence to prove.

• If “Step 2” and “Step 3” are the same, i.e., “Step 2” = “Step 3”, then the statement is hearsay-it’s being offered to prove the same thing that it asserts.

• If “Step 2” and “Step 3” are not the same, i.e., “Step 2” ≠ “Step 3”, then the statement is nothearsay – it’s not being offered to prove the same as it asserts. It is being offered for some otherreason.

[“Step 2” ≠ “Step 3” ≠ HEARSAY]

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WHICH STATEMENT IS HEARSAY? WHICH IS NONHEARSAY?Morgan is on trial for murder for killing her neighbor Sandra. Sandra is the president ofthe HOA in their subdivision, Laurel Hill. At trial the prosecution seeks to admit thefollowing statements into evidence against Morgan. Morgan objects that the statementsare hearsay. How should the court rule and why? (Do not address any exceptions/exemptions thatmay apply).A. During an HOA meeting in Morgan’s presence, Sandra commented that the neighborhood

had gone down since a certain element had been allowed to move in the quiteneighborhood. It was well known that Sandra was was referring to Morgan and her largefamily, who enjoyed having social events and large gatherings in their front yard that oftenwent late into the night.

B. That the night after the meeting Morgan was overheard saying that she was going to get ridof Sandra one way or another.

C. That Morgan said she was irritated about what Sandra had been saying about her family to theother neighbors.

D. That Sandra had writtena letter to Morgan saying that her familywas low class.

CATEGORIES OF NON-HEARSAY

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FOR WHAT PURPOSES OFFEREDEXAMPLES OF STATEMENTS NOT OFFERED FOR TRUTH; AND THEREFORE, NOT HEARSAY.

1. Verbal acts – an operative fact that gives rise to legal consequences.

2. Verbal parts of acts- words that accompanies an ambiguous physical act is not hearsay.

3. Nonassertive Conduct – conduct that does not assert a fact is not hearsay.

4. State of Mind of the hearer/listener/reader – if statement is offered to show the hearer had a certain emotion, or mental state (bias, etc.) or behaved reasonably, it is not hearsay.

5. State of mind of the Declarant –offered to show sanity or emotion, not hearsay.

6. Notice or knowledge of the hearer/receiver – offered to show hearer knew something

7. Notice or knowledge of declarant – offered to shows declarant knew something

8. Prior inconsistent statement is not hearsay if offered to impeach the witnesses current testimony.

9. Prior Consistent statement – a statement Is not hearsay if offered only to rebut a claim of recent fabrication or undue influence or motive

EXCEPTIONS & EXEMPTIONS TOHEARSAY RULE

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1. Present Sense Impression2. Excited Utterance3. Then Existing Mental, Emotional, or

Physical Condition4. Statement for Purpose of Medical Treatment5. Recorded Recollection6. Records of Regularly Conducted Activity7. Absence of Records Kept8. Public Records and Reports9. Records of Vital Statistics10. Absence of Public Record11. Records of Religious org.12. Marriage, Baptismal certificates13. Family Records

14. Records of documents affecting interest in property15. Records of or statements in documents affecting interest in property16. Statements in ancient documents17. Market reports, commercial publications18. Learned Treatises19. Reputation concerning personal or family history20. Reputation concerning boundaries or general history21. Reputation as to character22. Judge of previous conviction23. Judgment personal family or general history

or boundaries24. Testimony as to age

1. Former Testimony

2. Dying Declaration

3. Statement against Interest

4. State of personal/Family History

5. Complaint of Sexually Assult

6. Residual Catchall

7. Forfeiture By Wrongdoing

All of these exceptions require the declarant to be unavailable.}

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1. Prior Inconsistent Statement

2. Prior Consistent Statement

3. Identification

4. Complaint of Sexually Assaultive Behavior

5. Admissions (personal, adoptive, authorized)

6. Agent/Employee

7. Co-conspirator

8. Things Said and Done

These exemptions require the declarant be present at trial and capable of being cross-examined on the prior statement.

These exemptions are statements 1) made by the declarant; 2) offered against the declarant.

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A statement relating to a startling event or condition or condition made while the declarant is still under the stress of excitement caused by the event or condition.

1. the statement describesor explains (an event orcondition;

2. while (or immediatelyafter) perceiving theevent or condition

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A statement describing or explaining an event or condition made while perceiving it or immediately thereafter.

1. Startling event or condition2. Statement “relating to”

startling event or condition3. Made while still under stress

of startling event

A statement of a declarant’s then-existing mental condition (emotion, intent, plan, motive, design, mental feeling, etc.) offered to prove his then existing mental condition or future action.

1. Must be statement of thedeclarant’s then-existingmental condition

2. Offered to prove thethen-existing mentalcondition or futureaction

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FIVE KEY ISSUES OF STATE OF MIND EXCEPTION

1. Must be “then” existing mental condition, not statement of memory(a past mental state)

2. May be offered to prove declarant’s “future” action, not past action

3. May not be offered to prove future action of third party

4. Statement of belief/memory is not admissible to prove thing believed

5. A statement of memory/belief can be offered to prove thingremembered or believed as it pertains to testaments

HEARSAY STATE OF MIND VS. NON-HEARSAY STATE OF MIND

State of mind should be a direct statement of a person’s mental state – no inference necessary.Non-hearsay state of mind requires an inferenceof mental state.

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Under the federal rule, a statement of a person’s intent may also be offeredto prove the future action of a third person.

For example, the statement, “John and I are going to California,” may beoffered to prove that both John and the declarant went to California.

A statement of a declarant’s then-existing physical condition (pain, bodily health, sensation, etc.), offered to prove his then existing physical condition.

1. Must be statement of the declarant’s then-existing physical condition

2. Offered to prove the then-existing physical condition.

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Statements made for purposes of medical diagnosis and treatment in connection with treatment.

1. statements describing a person’smedial history, past or presentsymptoms, pain, or sensations and/orstatements regarding the cause andcircumstances of injury(if reasonablypertinent to treatment/diagnosis inconnection with treatment)

2. made to a healthcare provider3. for purposes of medical diagnosis and

treatment in connection withtreatment

Under the Federal Rules, a statement may be made merely for diagnosis, even if notreatment will be received. For example, if a person goes to a chiropractor to bediagnosed with severe back pain to use in a lawsuit.

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1. Establish that the witness once hadpersonal knowledge of the matter in therecord

2. Establish that despite the attempt torefresh the witness’s memory, she stillcannot testify fully and accurately

3. Establish that the record was made oradopted/verified by the witness

4. Show that the record wasmade/adopted/verified while the matterwas fresh in her memory

5. Show that the record correctly reflectsthe witness’memory of the matter

1. Establish that the witness has first-handknowledge of the incident/matter

2. Counsel should show the writing to thewitness and allow him to read it silently tohimself.

3. Writing should be taken away from the witness4. If the witness testifies that he now recalls the

matter independently of the writing, he maytestify to that independent recollection

5. If after reviewing the writing doesn’t refresh,counsel should 1) move on, 2) dismiss thewitness; or 3) try to admit under recordedrecollection

1. Must be business: any business, institution, association, profession, occupation, calling, including those that are not for profit

2. Records must be in the form of: memorandum, report, record, data compilation in any form3. Record must concern: acts, events, conditions, opinions, diagnosis4. Foundational requirements through a competent witness:

i. that the record was made at or near the time of the event it records;ii. that the record was made by: a) a person with personal knowledge; or b) based on information

transmitted to him by a person with personal knowledge;iii. that the recorded information was furnished to the business by either: a) a person who routinely

acting for the business in reporting the information; or b) in circumstances in which the statement would not be excluded by the hearsay rule;

iv. that the record was made and kept in the course of a regularly conducted business activity; and v. that it was the regular practice of that business activity to make and to keep the record

5. The source of information or the method or circumstances of preparation must not indicate lack oftrustworthiness.

6. Does not include public records and reports which are specifically excluded from the public recordsexception by Article 803(8)(b).

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Excludes records from hearsay ban that are records, reports, statements, or data compilations, in any form, of a public office or agency setting forth: (i) Its regularly conducted and regularly recorded activities; (ii) Matters observed pursuant to duty imposed by law and as to which there was a duty to report; or (iii) Factual findings resulting from an investigation made pursuant to authority granted by law.

1. Must be a record, report, or data compilation;2. Of a state or federal public agency or public office; and3. Must set forth: 1) its regularly conducted and regularly recorded

activities; ii) matters observed pursuant to duty imposed by law and as to which there was a duty to report; or factual findingsresulting from an investigation made pursuant to authority granted by law.

4. Not excluded under LCE 803(8)(b)(i)-(iv).1. Investigative reports by police and other law enforcement

personnel;2. Investigative reports prepared by or for any government,

public office, or public agency when offered by that or any other government, public office, or public agency in a case in which it is a party;

3. Factual findings offered by the prosecution in a criminalcase; and

4. Factual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based or an investigation into a similar occurrence or occurrences.

Statements under belief of impending death excludes statements from the hearsay rule if made by a declarant while believing that his death was imminent, when the statements are concerning the cause or circumstances of what he believed to be his impending death

1. declarant is unavailable;2. the declarant believes his death is

imminent, (whether or not he actuallydies); and

3. the statement concerns the cause orcircumstances of what he believed tobe his impending death.

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Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(criminal case)

1. declarant is unavailable;2. the party against whom testimony is now

offered must have (himself) had a prioropportunity and similar motive to developtestimony through direct, cross-examination, redirect examination; and

3. if offered against an accused, at time of priortestimony:

a. accused must have had counsel;b. witness under oath;c. witness was cross examined or

defendant validly waived;d. witness is currently unavailable; ande. state made a good faith effort to locate

the witness.

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(civil case)

1. declarant is unavailable; and2. the party against whom

testimony is now offered or (aparty with similar interest,) musthave had a prior opportunity andsimilar motive to developtestimony through direct, cross-examination, redirectexamination.

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Under the Federal Rules, dying declarations are only admissible in homicide trials,or in a civil case.

A statement, made before the controversy, concerning the declarant's own birth, adoption, marriage, divorce, filiation, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, (and death also, of another person, if the declarant was related to the other or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared).

1. declarant unavailable; and2. statement made before the

controversy began; and3. Either

1. regarding the declarant’s own personal or family history- ancestry, or other personal or family history; or

2. regarding the personal or family history (including death) of another person, related to the declarant; or

3. regarding the personal or family history (including death) of another person who was close enough to family to have accurate information.

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Family Records

1. record of family history (contained in Bibles, inscriptions, engravings, charts, genealogies, family portraits, urns, crypts, or tombstones, or the like)

2. Availability of declarant immaterial

3. Immaterial as to when record made

Family History1. Declarant unavailable

2. Statement made before controversy began; and

3. Either:a) regarding the declarant’s own personal

or family history- ancestry, or other personal or family history; or

b) regarding the personal or family history (including death) of another person, related to the declarant; or

c) regarding the personal or family history (including death) of another person who was close enough to family to have accurate information.

1. Statement regarding the reputation in the community as to a person’s family history

2. arising before the controversy

3. Availability of declarant immaterial

Family Reputation

Excludes statements from the hearsay rules made by a person under the age of twelve years and is a statement of initial or otherwise trustworthy complaint of sexually assaultive behavior.

1. the declarant must be unavailable; and

2. the statement must be either: a) one of initial complaint of sexually assaultive behavior or a trustworthy complaint of sexually assaultive behavior; and

3. the declarant must be a person under the age of twelve.

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Exempts a statement from the hearsay rule that is an initial complaint of sexual assaultive behavior that is consistent the declarant’s testimony at trial.

1. the declarant testifies at the trial or hearing and

2. is subject to cross-examination concerning the statement;

3. the statement is consistent with the declarant's testimony; and

4. is one of initial complaint of sexually assaultive behavior.

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Extraordinary and rare circumstances a statement that does not fit into any other hearsay exception may be excluded from the hearsay ban on an ad hoc case-by-case basis if compelling circumstances justify it.

1. unavailability of the declarant;2. trustworthiness of the

statement;3. showing that the proponent has

done all she can do to getadmissible evidence on theissue; and

4. written notice to theopponent/court (intent to offerstatement; particulars ofstatement; and name andaddress of declarant);

Allows a statement of an unavailable declarant to be offered against a party if that person is shown to be responsible for procuring the unavailability of the witness for the specific purpose of preventing the witness from testifying against him.

1. declarant is unavailable; and2. proponent must prove by a

preponderance of the evidence,that the party against whom thestatement is now offered,procured the unavailability ofwitness for purpose of preventingthe witness from testifying.

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exempts a witness’s prior statement from the hearsay rule that is inconsistent with the witness’s testimony at trial. The statement may be offered for its substantive value as well as for impeachment purposes.

1. the declarant testifies2. and is subject to cross examination

about the prior statement; 3. applies to criminal cases; 4. the prior statement is inconsistent

with his current testimony; 5. witness first given opportunity to

admit the fact of the prior statement; and

6. additional evidence corroborates the prior statement.

Exempts a witness’s prior statement from the hearsay rule that is consistent with the witness’s testimony at the present trial, when offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

1. The declarant testifies at the trial or hearing;

2. the declarant is subject to cross-examination concerning the prior statement;

3. the statement is consistent with his current testimony;

4. and is offered to rebut an express or implied charge against him of recent fabrication or improper inf luence or motive; and

5. the statement was made prior to the motive or inf luence to lie.

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PROBLEM Chloe’s mom and dad always got along very well and enjoyed joint custodyof Chloe for many years with no problems. One day, Chloe told her mother(Mom) and stepdad (Stepdad) that she didn’t like going to her dad’s (Dad)house because his friend touched her inappropriately. Chloe’s mom beganavoiding Dad on his custody weekends. Upset with dealing with this forover six months, Dad filed for sole custody of Chloe. Chloe hasn’tmentioned the accusations again since she initially told Mom and Stepdadabout it, and refuses to say anything about it at the trial. During cross-examination of Mom, Dad’s lawyer asked her if she had told Chloe to makeup the story about being molested at Dad’s house to keep Dad for winningcustody of Chloe. Mom adamantly denied the accusation and offeredChloe’s statement through her husband that Chloe made about Dad’sfriend six months before the custody proceedings began. Dad objected thatthe statement is inadmissible hearsay. Chloe’s prior statement should be:

Exempts a statement of identification of a person from the hearsay rule that was made outside of the present trial by a witness after perceiving the person.

1. the declarant testifies at the trial; 2. is subject to cross-examination

concerning the statement;3. the statement is one identification

of a person made after perceiving the person; or

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VERSUS

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Exempts statements from the hearsay rule that made by a party offered against he party.

F

1. they are statements by a party to the action orare attributed to him; and1. His own personal statement (in his

individual or representative capacity)[801D(2)(a)]

2. A statement in which he adopted[801D(2)(b)

3. A statement authorized by him[801D(2)(c)]

4. A statement of an agent/employee incourse/scope of employment/agency[801D(3)(a)

5. Statements of co-conspirators infurtherance of conspiracy [801D(3)(b)]

2. the statement is being offered against theparty; F

Exempts statements from the hearsay rule that made during a conspiracy, in furtherance of the conspiracy, when offered against any of the coconspirators.F

1. existence of conspiracy;2. made during the conspiracy; and3. in furtherance of the conspiracy;4. offered against any of the co-

conspirators

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Requirements for a statement of an agent/employee in course/scope of employment/agency.F

1. made by an employee or agent of the party;

2. concerning a matter within the scope of his agency or employment;

3. made during the existence of the relationship; and

4. offered against the principle/employer.

Excludes statements that are from the hearsay ban that are so contrary to the person’s pecuniary interests, proprietyinterests, or that might subject him to civil or criminal liability, or render a claiminvalid he has against another, that a reasonable person would not have made the statement unless the statement were true.

1. unavailable declarant; and2. against the declarant’s interest

(when made); and in some instances

3. declarant makes an incriminating statement, that exculpates a third party, there must be corroborating circumstances that indicate the statement is trustworthy

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Things said and done (“res gestae”) exempts from the hearsay ban the things that are “said and done” during a criminal act

1. applies in criminal cases;2. made by participants of the crime; 3. made during the crime, both

before and after the crime that forms a continuous transaction with it; and

4. statements are instructive, impulsive and spontaneous words and acts that are necessary incidents of the criminal act, or immediate concomitants of it,

MULTIPLE HEARSAY

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MULTIPLE HEARSAYEach statement must conform to an exeption/exemption

non-hearsay. She told me…..

That her mother told her…

That her employer said…

Exception or exemptions

Exception or exemptions

Exception or exemptions

ProblemThe parents of Minnie Williams is suing thedefendant Trish Simpson, and her insurancecompany for damages their daughter sustainedin a car accident after they claim Trishintentionally rammed her vehicle into theirdaughter’s car causing a severe head injury thatthe plaintiffs assert has resulted in a braindisorder in their daughter that causes her tohave periodic seizures. In support of their case,the Williams’ would like to offer the medicalrecord below into evidence from the firstincident in which Minnie suffered a seizure justfive days after the accident occurred in supportof their claim for damages. Upon offering theevidence, the defense has objected that themedical record is hearsay. They further assert,that even if the medical record is admitted intoevidence, that portions of the record should beexcluded as inadmissible multiple hearsay.Will any portion of the medical record beadmitted? If so, under what exception will it beadmissible? Are there multiple exceptions inwhich the medical record might be admissible?Explain each. If portions of the record aremultiple hearsay, what exceptions would applyto those statements? Will portions have to beexcised out of the record completely? Fullyexplain your answer.

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MULTIPLE HEARSAY

The medical report (person with first-hand knowledge

who prepared it) said…..

That her mother said that the patient was sitting at table doing homework when she began shaking and

trembling uncontrollably.

Exception or exemptions

Exception or exemptions

ProblemBilly is suing his cellphoneinsuranceprovide to reimburse himfor charges he incurred attemptingto have his defective cellphonerepaired. The insurance companyhas failed to pay claiming that thebill surpasses the value of thephone and only wants to pay theamount of the defective phone.Billy is suing for the entire billunder his insurance agreement. Insupport of his claim Billy offers theinvoice from the certified cellphonerepair company who replaced thephone after they attempted torepair it. Assuming the evidencehas been properly authenticated,ATV objects that the invoice ishearsay and/or multiple hearsay.What response(s) would you maketo attempt to overcome the hearsayobjections

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MULTIPLE HEARSAYEach statement must conform to an exeption/exemption

non-hearsay.

Invoice said (the tech preparing it with

firsthand knowledge)

That customer said phone will not charge; and that light is on…

Exception or exemptions

Exception or exemptions

ProblemLandon is on trial for killing hiswife. He claims she ran awayfrom home. In Landon’s defensehe offers the note below that heclaims his wife left on the kitchentable on the day that shedisappeared. Landon plans totake the stand and authenticatethe letter as being his wife’shandwriting. The prosecutionobjects that he letter is hearsay.How should Landon’s attorneyrespond to attempt to get theletter into evidence?

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SIXTH AMENDMENT CONFRONTATIONCLAUSE

Crawford provides that the Confrontation Clause requires that a statement be excluded unless:1) the witness is currentlyunavailable; and2) there was a prioropportunity for cross-examination.

1. The statement is non-testimonial , evenif never crossed and witness is currentlyunavailable

2. The statement is a) testimonial and b)witness is currently available for crossexamination

3. The statement is a) testimonial, and b)witness is unavailable; and c) prioropportunity to cross examine thewitness

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If statement is testimonial, and declarant is unavailable (for confrontation at trial), there must have been prior opoprtunity to cross-examine witness, or statement violates Confrontation Clause.

If the declarant is unavailable for confrontation at trial, the accused must have had a prior opportunity to cross-examintion the witnes.

Confrontation rghts are protected by either prior confrontation, or confrontation at trial.

Per Crawford, an accused only has a right to confront "witnesses" against him, i.e., those who "bear testimony.

Is the statement testimonial?

If yes, is the witness currently available or cross

examination?

If no, was there a prior opportunity

to cross-examination the witness on the

statement?

If yes, then confrontation rihgts were protected.

Admissible.

If no, then offering statement violates

Confrontation Clause.

Inadmissible.

If yes, the D may confront witnes at

trial on prior statement.

If no, then no Confrontation

issue. Admissible.

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Records or data compilations, in any form, of birth, filiation, adoption, or death, including fetal death, still birth, and abortion, or of marital status, including divorce and annulment, if the report thereof was made to a public office pursuant to requirements of law, and any record included within the Louisiana Vital Statistics Laws.

Statements of births, marriages, divorces, deaths, filiation, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

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Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

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Statements in ancient documents. Statements in a document in existence thirty years or more the authenticity of which is established, or statements in a recorded document as provided by other legislation.

Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

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Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or, in a civil case, relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, such a statement may be read into evidence and received as an exhibit but may not be taken into the jury room.

Reputation as to character. Reputation of a person's character among his associates or in the community.

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Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of six months, to prove any fact essential to sustain the judgment. This exception does not permit the prosecutor in a criminal prosecution to offer as evidence the judgment of conviction of a person other than the accused, except for the purpose of attacking the credibility of a witness. The pendency of an appeal may be shown but does not affect admissibility.

(24) Testimony as to age. A witness' testimony as to his own age.

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EXPERT TESTIMONY - ADMISSIBILITY AND APPLICATION1 Michael R. Fontham

The use of experts in litigation has expanded substantially since the adoption of the Federal Rules of Evidence in 1975. Those rules -- FRE 702-705 -- were aimed at ensuring that expert testimony would be admitted whenever specialized knowledge would aid the trier of fact in determining the issue, and to eliminate some difficulties in the presentation of expert testimony. FRE 702, Adv. Comm. Note; FRE 703, Adv. Comm. Note. FRE 702 initially provided:

Rule 702. Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testimony thereto in the form of an opinion or otherwise.

As the Advisory Committee Note indicates, the rule was broadly phrased, in order to permit "skilled" witnesses, those with specialized knowledge outside traditional "expert" fields, to offer opinions. The Note states:

The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the "scientific" and "technical" but extend to all "specialized" knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by "knowledge, skill, experience, training or education." Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called "skilled" witnesses, such as bankers or landowners testifying to land values.

Similarly, FRE 703 was intended to eliminate some of the practical difficulty in placing facts before the expert, particularly one who is called to offer an opinion with limited firsthand knowledge of the facts.

Traditionally, the expert had to attend the trial or answer hypothetical questions based on the facts proven or to be proven in the case. FRE 703 expanded the basis for expert opinions, allowing the expert to prepare opinions based on material reasonably relied on by experts in the field. It provided:

1 Contains excerpts from M. Fontham, Trial Technique and Evidence (NITA 4th ed. 2013). The author acknowledges valuable research assistance from Justin A. Swaim.

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Rule 703. Bases of Opinion Testimony by Experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

The Advisory Committee Note reviewed the traditional bases for expert testimony and the intended expansion. It states:

Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. The first is the firsthand observation of the witness with opinions based thereon traditionally allowed. A treating physician affords an example. Rheingold, The Basis of Medical Testimony, 15 Vand. L.Rev. 473, 478 (1962). Whether he must first relate his observations is treated in Rule 705. The second source, presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testimony the expert relied upon, when the latter technique is employed and the testimony is in conflict, may be resolved by resort to Rule 705. The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bass his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. Rheingold, supra, at 531; McCormick § 15. A similar provision is California Evidence Code § 801(b).

Additionally, FRE 704 permits the expert to opine on an ultimate factual (not legal) issue in the case. It states that "[a]n opinion is not objectionable just because it embraces an ultimate issue." The Advisory Committee Note made clear that the phrasing was designed to overrule precedent preventing experts from testifying on an ultimate issue. It states: "In order to

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render this approach [permitting any helpful opinions] fully effective and to allay any doubt on the subject, the so-called 'ultimate issue' rule is specifically abolished by the instant rule." FRE 704 did, however, prohibit experts from offering opinions on whether the defendant in a criminal case had the mental state prescribed by statute as an element of the offense.

The Louisiana Code of Evidence, adopted in 1988, was patterned on the Federal Rules of Evidence with respect to expert testimony. The expansions in FRE 702, 703 and 704 were all built into the parallel provisions of the Code. Thus, both in federal and state courts, the use of experts expanded, "litigation" expert fields came into being, and experts often acted as advocates for parties in trials. In addition, experts were sometimes used as vehicles to place inadmissible evidence before the jury. In response, federal appellate courts in particular began to question the permissive approach to expert testimony and the use of witnesses as advocates. See, e.g., In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230 (5th Cir. 1986).

A. Daubert and admissibility of expert testimony.

In 1993, the U.S. Supreme Court issued an opinion that changed the criteria for admitting expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The essential requirements established by the United States Supreme Court in Daubert are that expert testimony be "reliable" and "relevant" to the issues in dispute. Daubert requires that the trial judge act as a "gatekeeper," assessing the reliability and relevance of expert testimony before the jury can hear it. "Relevance" requires, among other things, that the expert's technique and analysis fit the factual circumstances being considered in the case.

Daubert involved the admissibility of testimony based on novel scientific techniques – specifically, novel methods for determining whether an anti-nausea drug caused or contributed to birth defects in infants. In that context, the court suggested criteria for testing reliability, including: a) whether the technique has been tested for accuracy and reliability; b) whether the method has been subjected to peer review and publication; c) whether known or potential rates of error have been established to control the technique's operation; and d) whether the methodology has gained "acceptance" in the relevant professional community.

Daubert has been extended outside the scientific realm, to all expert testimony, but the factors for assessing reliability depend on the circumstances. Kuhmo Tire Co., ltd. v. Carmichael, 526 U.S. 137 (1999). Outside the scientific realm, the court in assessing reliability may consider standard practices in a particular profession, professional criteria for making determinations, experience of the expert, and acceptance of the expert's methodology in the profession or in other litigated cases. With respect to economic experts, the methods employed in calculate damages and determine

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other economic impacts usually have wide acceptance, and are not often contested as unreliable. On the other hand, the expert's assumptions may not "fit" the facts of the case, subjecting the expert's conclusion to objection on relevance grounds. With respect to more judgmental determinations – market power, collusion, and similar determinations – the expert may need to tie his opinion to an accepted economic methodology for making these determinations.

After Moore v. Ashland Chemicals, Inc., 151 F.3d 269 (5th Cir. 1998), it appeared that the courts might give special prominence to the "general acceptance" criterion in assessing an expert's reliability. Other courts have rejected the specific holding in Moore, however, so it may not signal a trend in decisions. Nevertheless, if a methodology has general acceptance in a field, it generally will be admissible even if the method is not testable or fails the other criteria. On the other hand, a peer-reviewed and published methodology, with an alleged known rate of error, may be inadmissible if it goes against the accepted views in a professional field.

In State v. Foret, 628 So. 2d 1116 (La. 1993), the Louisiana Supreme Court ruled that the Daubert decision and federal interpretations of parallel provisions of the federal rules relating to experts provided persuasive guidance in applying the Louisiana provisions. It said:

Since much of the Louisiana Code of Evidence is patterned after the Federal Rules of Evidence in an attempt to facilitate a "movement towards a uniform national law of evidence," it seems appropriate for Louisiana courts to, "especially where the language of the Louisiana Code is identical or virtually identical with that used . . . in the federal rules" utilize this "body of persuasive authority which may be instructive in interpreting the Louisiana Code." La. C.E. art. 102, Comment "a". As the Louisiana Code of Evidence provision on expert testimony is identical to the federal Rule, it follows that this court should carefully consider the Daubert decision that soundly interprets an identical provision in the federal law of evidence.

Id. at 1122-23. The Court has also followed federal precedent with respect to the use of expert evidence at the summary judgment stage. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00); 755 So. 2d 226, 235: "Accordingly, it follows that we now adopt the Daubert standards for admissibility of expert opinion evidence at the summary judgment stage, as do the federal courts."

In 2000, the FRE 702 was amended to codify Daubert. It specifies three requirements for the admissibility of expert testimony: (a) a fact or data base for the opinion, (b) the use of reliable principles and methods in developing the opinion, and (c) a reliable application of the principles and methods to the facts of the case.

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The twofold reliability requirement -- a court must determine that an expert has used “reliable” principles and methods and applied them “reliably . . . to the facts of the case”—may introduce a new level of judicial “gatekeeping” to the expert testimony problem. Daubert required a reliable methodology, but called for a determination “of whether the reasoning or methodology properly can be applied to the facts in issue.” 509 U.S. 593. The elevated inquiry suggested by the rule -- can the reasoning or method apply reliably to the facts?—may lead judges to perform more than a screening function. Additionally, since the amendment appears to authorize greater intrusion into an area traditionally left to juries, it inevitably will lead to inconsistent results. Some judges may decide cases summarily based on their own determinations as to which party’s expert is more persuasive; others may leave the evaluation of persuasiveness to the jury. Thus, the amendment may further and unnecessarily complicate an area that already is unpredictable.

In 2014, LCE 702 was amended to incorporate the changes to the federal rule. It now provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the facts of the case.

With respect to admissibility, the Louisiana standard would appear to be the same as the federal standard.

An illustration of how federal courts have disagreed on the application of Daubert arises with respect to the physician's use of a "differential diagnosis" to determine the cause of symptoms.

The United States Court of Appeals for the Fifth Circuit, in Moore v. Ashland Chemical, Inc., found that a differential diagnosis was not sufficiently reliable to satisfy the Daubert standard for admissibility of expert testimony. 151 F.3d 269, 279 (5th Cir. 1998); See Daubert, 507 U.S. 579. The court, sitting en banc, indicated that there must be an objective and independent validation of an expert's methodology before it will be deemed reliable. Id. at 275-76. It

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recognized that this requirement may lead to the exclusion of valid medical or scientific opinions, which have not yet received validation.

Several federal courts of appeal have disagreed with the Fifth Circuit, and have found that a properly conducted differential diagnosis will satisfy the Daubert standards for admissibility of expert testimony. See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263 (4th Cir. 1999) (comparing with Moore cases from the Third, Ninth, Second and D.C. Circuits that held that a proper differential diagnosis was sufficiently reliable for admission). These courts, however, have established high admissibility thresholds for medical causation opinions based on differential diagnosis.

In Best v. Lowe's Home Centers, the Sixth Circuit held that the United States District Court for the Eastern District of Tennessee abused its discretion in excluding a doctor's differential diagnosis opinion that pool cleaner that spilled on the plaintiff when he was in Lowe's caused the plaintiff to lose his sense of smell. 563 F.3d 171 (6th Cir. 2009). In admitting the expert testimony, the court noted that "[a]n overwhelming majority of the courts of appeals agree, and have held that a medical opinion on causation based on a reliable differential diagnosis is sufficiently valid to satisfy the first prong [reliability] of the Rule 702 inquiry." Id. at 178 (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263 (4th. Cir. 1999)) (internal quotation marks omitted; alteration in original). In order to determine whether the proffered expert's differential diagnosis was admissible, the Sixth Circuit

adopt[ed] the following differential-diagnosis test, adapted from the Third Circuit[] . . . : A medical-causation opinion in the form of a doctor's differential diagnosis is reliable and admissible where the doctor (1) objectively ascertains, to the extent possible, the nature of the patient's injury, ("A physician who evaluates a patient in preparation for litigation should seek more than a patient's self-report of symptoms or illness and . . . should . . . determine that a patient is ill and what illness the patient has contracted."), (2) "rules in" one or more causes of the injury using a valid methodology, and (3) engages in "standard diagnostic techniques by which doctors normally rule out alternative causes" to reach a conclusion as to which cause is most likely. In connection with the third "rules out" prong, if the doctor "engage[s] in very few standard diagnostic techniques by which doctors normally rule out alternative causes," the doctor must offer a "good explanation as to why his or her conclusion remain[s] reliable." Similarly, the doctor must provide a reasonable explanation as to why "he or she has concluded that [any alternative cause suggested by the defense] was not the sole cause."

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Id. at 179 (quoting In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 762, 760 (3d Cir. 1994)) (internal citations omitted; second and third alternations in original).

The Sixth Circuit found that the proffered expert determined that the plaintiff had lost his sense of smell by means of a well-recognized, objective method, satisfying the first prong of the reliability test for a differential diagnosis. Id. at 180. In addition, the court found that the doctor's method of ruling in the spilled pool cleaner as a possible cause of the plaintiff's injury, "conclud[ing] from the MSDS [Material Safety Data Sheet] and his own knowledge of medicine and chemistry that the chemical [the pool cleaner] contains can cause damage to the nasal and sinus mucosa upon inhalation," was valid, and supported the admission of the differential diagnosis opinion. Id. at 181. Finally, the court found that the doctor had used standard techniques to rule out alternative causes of injury. Id. at 181-82.

In contrast, the Eleventh Circuit affirmed the United States District Court for the Middle District of Florida's decision to exclude expert causation testimony based on differential diagnosis in Guinn v. AstraZeneca Pharmaceuticals LP. 602 F.3d 1245 (11th Cir. 2010). The court determined that the doctor's differential diagnosis, which determined that a prescription medication caused the plaintiff to gain weight and develop diabetes, did not adequately rule out other possible causes of the disease. Id. at 1254. The expert had relied largely on the temporal proximity between the plaintiff's use of the prescription and her development of diabetes in order to determine that the medication caused the diabetes. Id. The court found, however, that the temporal relationship between the use of the drug and the development of diabetes was weak; the expert testified that many people diagnosed with diabetes have had it for five years before diagnosis and the plaintiff was diagnosed only four years after beginning to use the drug, and there was thus some indication that the plaintiff possibly had diabetes before ever using the drug. Id. Further, the expert failed to give an explanation for ruling out several other risk factors in the plaintiff's medical history. Id. at 1254-55. The court stated that "[a]lthough a reliable [and admissible] differential diagnosis need not rule out all possible alternative causes, it must at least consider other factors that could have been the sole cause of the plaintiff's injury." Id. at 1253.

In Bland v. Verizon Wireless, the Eighth Circuit determined that an expert's proffered differential diagnosis opinion was properly excluded when the doctor testified that a plaintiff's ingestion of freon caused her asthma without first determining the level of exposure to freon that could cause respiratory problems and the level to which the plaintiff was exposed. 538 F.3d 893, 898 (8th Cir. 2008). In the absence of this information, the doctor relied heavily on the temporal proximity between the plaintiff's inhalation of freon and the onset of respiratory problems in determining that the plaintiff's symptoms were caused by the freon ingestion. Id. The court found this methodology unreliable, as the doctor first saw the plaintiff five weeks after she inhaled freon. Id. at 899. The

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court noted that while "a medical opinion about causation based upon a proper differential diagnosis is sufficiently reliable to satisfy Daubert," Id. at 897 (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000)), "[i]n the absence of an established scientific connection between exposure and illness, or compelling circumstances . . . the temporal connection between exposure to chemicals and an onset of symptoms, standing alone, is entitled to little weight in determining causation"; thus, the proffered expert did not conduct a proper differential diagnosis. Id. at 898-99 (quoting Moore v. Ashland Chem., Inc., 151 F.3d 269, 278 (5th Cir. 1998)).

B. Reliance on inadmissible data.

LCE 703 is identical to the original FRE 703. It provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

In explaining the federal rules, the FRE Advisory Committee did not comment on whether an expert who relied on inadmissible data could also introduce the inadmissible data into the record in explaining his/her opinions. As a result, FRE 703 often was a vehicle for abuse, allowing an end run around the rules of evidence to introduce inadmissible information. The Advisory Committee to the Louisiana Code of Evidence, in contrast, warned that the Louisiana rule was not necessarily intended to permit the expert to relate inadmissible information to the jury. It states:

The fact that the expert may base his opinion or inference on inadmissible evidence does not necessarily imply that the expert may relate such information to the jury. Whether he may do so is governed by Articles 705 and 403 of this Code.

See also, LCE 705(B), applicable to criminal cases, which provides that the expert must state the basis for his/her opinions, except "that with respect to evidence which would otherwise be inadmissible such basis shall only be elicited on cross-examination."

FRE 703 was amended at the same time the Daubert standards were incorporated into FRE 702. The amendment provides:

But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

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Although the requirement that probative value "substantially outweigh[h]" prejudice is different from the requirement in Louisiana to apply LCE 403, which deems evidence admissible unless prejudice substantially outweighs probative value, there may not be much difference in the application of these standards. If evidence is inadmissible under the rules, prejudice presumably would be high in most cases.

The Advisory Committee Note to the FRE 703 amendment comments on some of the issues that will arise in applying the rule. It states:

When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert's opinion, a trial court applying this Rule must consider the information's probative value in assisting the jury to weigh the expert's opinion on the one hand, and the risk of prejudice resulting from the jury's potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information is assisting the jury to evaluate the expert's opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, information the jury that the underlying information must not be used for substantive purposes. See Rule 105. In determining the appropriate course, the trial court should consider the probable effectiveness or lack of effectiveness of a limiting instruction under the particular circumstances.

The amendment governs only the disclosure to the jury of information that is reasonably relied on by an expert, when that information is not admissible for substantive purposes. It is not intended to affect the admissibility of an expert's testimony. Nor does the amendment prevent an expert from relying on information that is inadmissible for substantive purposes.

Nothing in this Rule restricts the presentation of underlying expert facts or data when offered by an adverse party. See Rule 705. Of course, an adversary's attack on an expert's basis will often open the door to a proponent's rebuttal with information that was reasonably relied upon by the expert, even if that information would not have been discloseable initially under the balancing test provided by this amendment. Moreover, in some circumstances the proponent might wish to disclose information that is relied upon by the expert in order to "remove the sting" from the opponent's anticipated attack, and thereby prevent the jury from drawing an unfair negative inference. The trial court should take

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this consideration into account in applying the balancing test provided by this amendment.

An interesting application of these principles arose in Williams v. Illinois, 1325 S. Ct. 2221 (2012), that an expert could state an opinion that DNA samples produced a match with the defendant after considering DNA profiles produced by a testing lab, without the presentation of live testimony from the lab analyst. The plurality relied on the evidentiary rule that an expert can rely on material normally relied on in the field even if it is inadmissible. The reliance does not constitute proof of the fact; it is merely a basis for the opinion. Since the trial was a bench trial, the Court presumed that the fact finder could distinguish these purposes in considering the expert's opinion. A four-justice dissent, authored by Justice Kagan, determined that the only probative use of the test reports was to show the results were true, thus providing a basis for the expert's opinion. Id. at 2269. Thus, the dissent argued that the introduction of the results violated the Confrontation Clause. Justice Thomas broke the tie, agreeing with the dissent's hearsay analysis but finding that a non-sworn report does not bear sufficient earmarks of solemnity to be considered testimonial. Id. at 2261-62.

The plurality's conclusion may be based more on the view that prior Confrontation Clause cases were incorrectly decided than on the validity of its hearsay analysis. An expert may rely on inadmissible data informing an opinion, but if the truth of the inadmissible evidence is essential to the validity of the opinion, the opinion itself would presumably lose its probative value. The rule permitting an expert to rely on inadmissible data is not designed to provide a way around evidentiary requirements, but to remove a practical impediment to the formation of the expert's opinion prior to trial, where admissibility has not yet been determined. The value of the opinion logically should still depend on the establishment of its factual premises.

C. Hypothetical Questions.

Although FRE 703 broadens the permissible basis for expert opinions, it does not necessarily displace the use of hypothetical questions. The hypothetical has been criticized as unwieldy and confusing, especially when lengthy questions are interrupted by objections. Given the relaxed rules governing expert testimony, attorneys now rarely use hypotheticals. Nevertheless, the hypothetical can be an effective method for restating the factual theory of the case and arguing conclusions. See Specht v. Jensen, 832 F.2d 1516, 1526 (10th Cir. 1987) (court allowed testimony of expert concerning the constitutionality of a search and seizure to be structured around hypothetical questions).

The facts in a hypothetical must be supported by evidence, although the evidence need not be uncontradicted. In addition, the facts may be reasonable inferences drawn from the evidence. The facts need not be proven before an opinion is rendered, although proving facts first is desirable. This

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action eliminates confusion and avoids the embarrassment of having an opinion stricken after it is rendered, when evidence is not introduced to support the hypothetical. Proving the facts first also tends to eliminate "facts not in evidence" objections. A lawyer may ask a hypothetical question even if the expert know some or all the facts.

Preparation is the key to using a hypothetical question. The word picture in the hypothetical should fairly reflect facts and inferences reasonably flowing from the evidence. A lawyer should not weigh down the hypothetical with needless detail; emphasize the facts supporting the expert's opinion. There should be no mistakes in the factual rendition. The crisper the presentation, the less likely the hypothetical will be objectionable. Stated properly, a hypothetical can be a good tool of argument.

As Judge Irving Goldstien stated in his 1935 treatise on trial advocacy:

A hypothetical question, when properly prepared, has a favorable psychological effect as it serves to sum up for the jury all of the important material facts and evidence which the propounder of the question feels should entitle his client to a verdict.

I. Goldstien, Trial Technique § 499 (Callaghan Co. 1935). Judge Goldstien also summarized some of the common law requirements respecting hypotheticals:

The hypothetical question should be so framed as to reflect the theory of the party propounding it, as shown by the facts admitted or proved. With the permission of the court, facts assumed in a hypothetical question may be predicated upon testimony which the court is assured that counsel will adduce later. Whether the facts stated in a hypothetical question are sufficiently established by the proof, is a question for the jury. The length of the question is a matter almost wholly within the discretion of the court. While no truly material fact should be left out, the question should not be unduly drawn out for fear of tiring the jury; though it is generally necessary to include all material facts in disputed cases, it is permissible to use only part of the facts, if they are sufficient upon which to base an opinion consistent with the propounders' theory of the case. Slight exaggeration, coloring, or evidencing partisanship in relating the assumed facts to the witness will not make the question objectionable in the discretion of the court, but when indulged in to the extent of being misleading, if fatal. . . .

Id., § 509 (footnotes omitted).

A hypothetical question must fairly reflect the facts of the case. Otherwise, it should not be admissible under Daubert, which requires the expert

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opinion to "fit" the facts. Louisiana jurisprudence imposes this traditional requirement. See, e.g., Meany v. Meany, 94-0251, p. 10-11 (La. 7/5/94); 639 So. 2d 229, 236 ("It is recognized principle of the law of evidence that if expert testimony given in response to hypothetical questions is predicated on a statement of unproven facts, it has no probative value and should not affect the outcome of the case. Although it is the judge's province to rule improper a hypothetical question predicated on facts totally lacking support in the record, an error in this regard is not reversible as long as other evidence fairly proves the matter addressed by the improper hypothetical." (citations omitted); State v. Schouest, 351 So. 2d 462, 467 (La. 1977) ("The opinion of an expert witness on facts not within his personal knowledge may be elicited by propounding a hypothetical question which is in proper form, provided the hypothesis assumes only facts which the evidence proves or tends to prove. Unless the record supports the facts assumed the hypothetical question is impermissible.") (citations omitted).

D. Practitioner Pointers.

1. Expert qualifications.

FRE 702 provides that an expert may testify if qualified by"knowledge, skill, experience, training, or education," when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The rule permits experts to provide opinion or other testimony, but requires that the testimony be based on sufficient facts or data, that the testimony be the product of reliable principles and methods, and that the principles and methods be reliably applied to the facts of the case.

A lawyer should work with the expert retained to give testimony to ensure an impressive and interesting presentation of qualifications. In general, the lawyer's questions should divide the expert's credentials by categories, so the expert is not forced to brag across numerous categories in a mind-numbing review of his professional life. Categories of expert experience include: education, professional experience, special (relevant) training, teaching experience, publications (particularly relevant publications), prior expert testimony qualifications, and the number of times the expert has dealt with the same or similar issues. Additionally, a lawyer may review the basis for assessing the reliability of the expert's method or opinion. In general, the lawyer should ask the expert several questions within each category that he and the expert review, achieving a focus on the expert's particular, unique ability to address the issues in the case.

2. Use of experts.

Lawyers often are reluctant to deeply involve themselves in thetechnical issues in a case, relying on an expert or experts to analyze these issues, discover problems with the adversary's case, and explain technical issues to the jury. Often this approach reduces the effectiveness of a presentation, because

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experts are prone to use technical jargon and provide explanations that are difficult for lay people to understand. The lawyer must understand the issues in order to translate key determinations for the jury. In that endeavor, the lawyer needs the expert's help. The expert should assist the lawyer in identifying and framing a well-founded position on technical issues and in identifying problems with the opposing side's positions. The expert should assist in discovery and should help the lawyer prepare effective lines of questions for deposition. But the goal should be to help the lawyer understand the issues, so that he/she can do an effective job of lawyering. The expert should not take over counsel's role, as when the lawyer simply reads the questions from a script. This approach gives the opposing expert a free shot to toy with the lawyer.

3. Expert discovery.

Generally, the lawyer's best opportunity to undermine experttestimony occurs in deposition. Often experts are unprepared for a deposition and have not thought through all the ramifications of litigation positions. Once a lawyer gets an expert committed to positions on various points (some of which the expert may not have anticipated), the statements can be used effectively at trial. Thus, ensuring that an expert is prepared for a deposition and understands the entire case are essential to ultimate success.

The lawyer strategies in deposition may include the following:

a. Lawyer keeps the expert talking. The more an expert saysin deposition, the more ammunition the lawyer has to select for cross-examination. I instruct younger lawyers to "play dumb" in a deposition, asking the expert to explain, explain, explain. Moreover, asking the expert to speak in common, everyday language in deposition provides effective ammunition for cross-examination.

Unless the expert and lawyer have conceived a strategy aimed at settlement, making the strongest points in depositions is pointless. The deposition is hearsay and inadmissible unless the opposing side wants to use it to prepare cross-examination and, if necessary, impeach the expert. An expert needs to answer questions honestly, but there is no benefit in gratuitous point-scoring. The expert should save it for trial. Experts should not assume that they know more about the issues or the case than the lawyer in a deposition; instead, they should assume the opposite. An overconfident expert may make serious mistakes, incorrectly believing he or she is scoring points, when these points will only prepare the adverse party for trial.

b. Lawyer explores expert's credentials. The attorney shouldthink of professional credentials that might be distinctly suited to the facts; ask if the expert possesses them. He or she should try to think of credentials that the expert may not have. Asking about them will lay a foundation for cross-examination and may make the expert defensive. The review of credentials is

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sometimes a good opportunity to accumulate some substantive ammunition. Assume you intend to use the XYZ Theory in the discipline but the expert does not yet know that. You can ask about the expert's experience with the XYZ Theory, what supports it, why it has gained acceptance, and so on. The expert will want to show expertise, and may make a great case for the XYZ Theory, without realizing that you are really discussing substance.

c. Lawyer determines expert's method and its acceptance.Early in the deposition, the attorney should explore how the expert ordinarily arrives at conclusions. Determine the factual predicate and the types of evidence that the expert would require to support a conclusion. The attorney may even try intimating that the expert would offer an opinion without much support, which should produce assurances that the expert would require extensive support. This testimony may come in handy in attacking the expert's basis. It may even support exclusion of the expert's opinions if the expert relies on a basis for the litigation that she would not accept in her professional practice.

d. Lawyer explores the application of principles. A goodlawyer will explore principles with an expert in a context removed from the facts of the case under litigation. Often the lawyer can secure concessions on the hypothetical application of principles that may appear inconsistent with the expert's application of the principles to the facts. The lawyer needs to conceive and prepare these lines of questioning; an expert should be ready to explain how his or her opinion fits with basic principles. Also, a good lawyer will conceive questions that reverse roles, placing the expert's client hypothetically in the position of the opposing side. The expert may be inclined to protect the client in the hypothetical, opening the way for use of the hypothetical against him/her at trial.

Additionally, a good lawyer will probe for any principles or considerations that support his/her position. Partial agreement with the other side's case is better than no agreement at all. An expert should anticipate these questions so that he/she may give up as little as possible. Of course, the expert still must admit the truth if a principle supports the opposing side.

e. Lawyer tries misdirection. Experts often play the role ofadvocates. If an expert thinks the lawyer is trying to get her to say something, she has an urge to offer reasons why the attorney is wrong. The expert may not realize how these statements can be turned around. The lawyer might try a bit of acting, suggesting the expert should accept a conclusion that the lawyer really wants her to reject. It is surprising how often the expert will argue against a principle that supports the expert's own position. For this tactic to work, however, the questioning must be conceptual, and the lawyer must thoroughly understand the area.

f. Lawyer explores related technical issues. Often more thanone expert is hired to testify for a party in a case, and asked to focus only on one

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part of the technical presentation. In that situation a good lawyer will ask the expert about all aspects of the case within his/her expertise, hoping to obtain concessions that may be helpful on issues for which the expert is unprepared. To protect against this eventuality, the defending lawyer should help the expert understand the entire theory of the case and visualize how his/her opinions fit with it.

g. Lawyer establishes the "didn't do's." A lawyer can make abig issue of what an expert "didn't do" prior to forming her opinion. Thus, a lawyer and expert should prepare thoroughly before the deposition. Sometimes litigation strategy calls for putting off some analyses until after the deposition, but be cautious about adopting this approach.

h. Lawyer uses the facts. The lawyer's best weapon against anexpert is a superior knowledge of the facts of the case. The defending lawyer needs to help the expert understand the facts that may work against his or her side and be prepared to accommodate them to the expert's position. Often expert opinions can be made to seem ridiculous when translated into everyday language and placed in the context of inconsistent facts.

i. Lawyer nails down points in agreement. Some expertfields are governed by well-accepted principles. A doctor, engineer, or scientist usually will need to concede the correctness of governing precepts in the field. Thus, an attorney often can elicit concessions that accepted principles are correct, even if they support a position contrary to that of the expert. Moreover, the attorney can use authorities (scholarly articles, etc.) as evidence if the expert accepts them or another expert testifies they are authoritative. FRE 803(18).

j. Lawyer explores expert's compensation. Always find outin the deposition how the expert is being compensated. An extremely high hourly rate or an outcome-based fee can be a basis for embarrassing an expert and attacking objectivity. If the expert's fee basis is higher than the pay for other experts in the case, a jury may view her as an expert-for-hire. Find out the fee basis in advance, as you do not want to be surprised by the expert's response.

4. Direct examination.

The lawyer and expert should thoroughly prepare the directexamination. Never assume that an expert can carry the presentation as if lecturing a class. The direct examination should be accomplished in question-answer fashion, with the lawyer controlling the presentation and limiting the scope of individual answers. This approach brings far greater focus to the expert's presentation than a long-winded monologue.

The expert and lawyer need to work to make sure that the questions contain sufficient meat – factual or theoretical signals – so that the expert knows what points to address. The testimony should be direct and couched

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in common language. If the expert uses technical terms, he/she should explain them. The expert should avoid talking down to the listeners, but should provide information in a straightforward, helpful manner. One method of making theoretical applications understandable is to use analogies, but both lawyer and expert should make sure the analogies really help.

Demonstrative aids are also a great means of enhancing expert testimony. Particularly when an expert explains theory – for instance, "equilibrium" of supply and demand – a demonstrative chart can make the testimony more understandable than relying on words alone. Again, the expert should work with the lawyer to make sure the chart advances the cause. Overly complex charts, and too many charts, often get in the way of a good presentation.

A good sequence of expert testimony on direct is the following: a) lay the groundwork for the expert's opinion, such as expertise on a particular point and review of facts, b) ask for the expert's opinion, c) review the expert's reasons, d) follow up to permit the expert elaboration on the reasons. This approach canbe repeated when there is more than one opinion.

5. Cross-Examination of Experts.

A good cross-examination depends on good discovery. A goodcross-examiner will use the following techniques:

a. Cross-examiner translates expert opinions to bring outcommon sense problems. Based on the deposition, the lawyer will try to show that an expert's technical application of theory does not fit the facts, or fits in an illogical manner.

b. Cross-examiner uses the facts. The lawyer usually knowsthe facts better than the expert, and can use that knowledge to advantage. Emphasizing the facts that do not fit the expert's opinion can be a good basis to undermine the testimony.

c. Cross-examiner gets agreement on common points. Agreat technique is to ask the expert to agree to points in common, which support the opposing side as well as the expert's side, and to points that support the lawyer's side. An expert, in turn, needs to call attention to the basis for disagreement.

d. Cross-examiner dramatizes unrealistic assumptions. Oneof the worst mistakes an expert can make is to adopt unrealistic assumptions, for the purpose of overreaching in a litigation position. A good lawyer can make the expert's opinion seem absurd.

e. Cross-examiner brings out the "didn't do's." If the expertdid not perform analyses that should or could have been performed, the expert's opinion is subject to attack for lack of basis.

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f. Cross-examiner checks the expert computations. Expertsoften delegate much of their work and are unable to personally vouch for underlying calculations. A good lawyer will bring out the fact that the expert personally cannot support his/her own calculations. Further, if the lawyer can find errors in the calculation (perhaps with the help of his/her own expert), bringing out the mistakes can have a devastating impact. The expert needs to "check the numbers" and be prepared to sponsor them all.

g. Lawyer brings out financial and other loyalties. Anattorney sometimes can undercut an expert by showing that she is biased. Bringing out the expert's fee or a long tradition of testifying only for one side suggests that the expert is not objective. This approach is double-edged, however; both side's experts usually get a fee and often tend to be associated with particular views.

h. Lawyer lays foundations first. Often an attorney can obtainconcessions from an expert before she knows where you are going. Cross-examining on general points first can establish principles that later prove useful on a specific matter. If the expert knows how you will use an accepted point, he may quibble.

i. Lawyer uses scholarly and technical authorities. Anattorney can obtain concessions on points of principle by referring the expert to published authorities. This approach also may tell the expert that the attorney is prepared, reducing his tendency to quibble. If the expert (or another expert) testifies the authority is reliable, you may read it to the jury. FRE 803(18). An expert who repeatedly denies that authorities are reliable may undermine her own credibility.

6. Expert tricks of the trade.

Experts often try to toy with lawyers in cross-examination. Tosome extent, the "tricks" can be effective in intimidating a lawyer and deflecting hard questions. An expert needs to be careful, however, because the factfinder will evaluate her responsiveness as she answers. Nevertheless, an expert almost always will engage in some advocacy for his/her client. Expert "tricks" include the following:

a. Answering a question different from the one posed by theattorney. Often experts ignore the lawyer's question and answer a question the expert likes better. This approach permits the expert to state favorable points, while avoiding concessions. Once in a while this tactic can be effective, particularly with the question is complex or otherwise difficult to understand. The questioner sometimes fails to realize that the expert answered a different question, or "takes the bait" and pursues a line of questioning that derails a theme.

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b. "Explanation." Every witness is entitled to explain ananswer. Experts often take the explanations to an extreme level, effectively advocating for the client on numerous points unrelated to the question. The lawyer should call attention to the non-responsiveness of the answer, with questions such as:

"Getting back to my question, please tell us . . ."

"Perhaps you could try to provide a yes or no answer and then explain that answer. . . ."

If the expert simply refuses to provide responsive answers, ask the judge to direct the witness to answer.

c. Asking for explanation from the attorney. When anattorney gains momentum, usually with specific, close-end questions, an expert often seeks a way to break the momentum. One method is to ask questions about the lawyer's questions. If an expert asks the lawyer to define his terms, or explain how he is using the terms, the lawyer often will fall into the trap of succumbing to interrogation. Lawyers should be prepared to maintain focus, asking the expert for her definition or providing a ready definition in a question.

d. Baiting the lawyer. Sometimes an expert, seeking to divertattention from a lawyer's success, may begin baiting the attorney. The expert may say something like "based on that question, counsel, I have to conclude that you don't really understand this principle . . . ." The attorney should refuse the bait, pressing forward with the questions. If the attorney goes out-of-control, and the expert stays in control, the expert will usually win the battle.

1

Evidence –Handling Character Issues – LCE

Art. 404(B)

Speaker - Bobby HargesAdams and Reese Distinguished Professor of LawLoyola University New Orleans College of Law

504-861-5666Email: harges@loyno.edu

• Bobby Harges is the Adams and Reese Distinguished Professor of Law at Loyola University New Orleans. He received a B.S. degree from Mississippi State University and law degrees from the University of Mississippi School of Law and Harvard Law School. He has written several books on Louisiana evidence law, criminal law, DWI law & ADR.

• Mr. Harges has taught Insurance Law, Torts, Evidence, Mediation and Arbitration, Arbitration Advocacy, and Criminal Law and Procedure. He is licensed to practice law in Louisiana and Mississippi and has an active mediation and arbitration practice with MAPS in Mississippi and Louisiana. As a neutral with over twenty-six (27) years of experience, he has mediated, arbitrated, and/or served as a special master in over one thousand cases.

Policy Behind Art. 404(B)

• From the perspective of the prosecutor, the404(B) evidence is necessary to explain tothe jury the essence of the charge leviedagainst the defendant. The 404(B) evidenceis necessary to give the jury a morecomplete picture of who this defendant is.

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D’s Perspective on Art. 404(B)

• The defendants normally argue that theevidence should not be admissible becauseit is too prejudicial. They also argue thatthe jurors may disregard the evidence, andconvict the defendants, not based on theevidence presented relative to this crime,but because of the prior bad acts.

IMPROPER BASIS FOR DECISION

• A litigant in a trial should not win or lose atrial because of his or her

• Race• Gender• Sexual orientation• Religion• Character

WHY?

• A litigant should win or lose based on theevidence presented about the incident,crime, contract, occurrence, or situation, notsome other fact that may be somehowrelated to the trial.

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CHARACTER EVIDENCE

• Art. 404. Character evidence generally not admissible in civil or criminal trial to proveconduct; exceptions; other criminal acts

• A. Character evidence generally. Evidence of a person's character or a trait of his character, suchas a moral quality, is not admissible for thepurpose of proving that he acted in conformitytherewith on a particular occasion, except:

CHARACTER EVIDENCE

• Art. 404.• A. Propensity Bar• (A)(1). Evidence of D’s character• (A)(2). Character of victim, including BWS.• (A)(3). Character of witness [see Art. 607 et seq)• (B)(1). Other crimes, wrongs, acts• (B)(2). Character of victim – battered spouse

Art. 404. Exceptions to inadmissibility of character for propensity purposes

• A. (1) Character of accused. Evidence of a pertinent trait of his character, such as a moral quality, offered by anaccused, or by the prosecution to rebut the character evidence; provided that such evidence shall be restrictedto showing those moral qualities pertinent to the crimewith which he is charged, and that character evidencecannot destroy conclusive evidence of guilt.

• For form, go to Article 405.

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Propensity!

• CHARACTEREVIDENCE

In criminal cases, D can say “I am a good man.”

Mother.Minister.Friend.

Propensity!

• CHARACTEREVIDENCE

State cannot say directly,“He is a bad man!” by showing character evidence.

Art. 404(B)Other crimes, wrongs, or acts.

• (1) . . ., evidence of other crimes, wrongs, oracts is not admissible to prove the characterof a person in order to show that he acted inconformity therewith. It may, however, beadmissible for other purposes, such as proofof motive, opportunity, intent, preparation,plan, knowledge, identity, absence ofmistake or accident,

5

Article 404(B)K

I

P

P

O

M

I

A

Article 404(B) – CRIMINAL CASES – NON-CHARACTER PURPOSES

K - KNOWLEDGE

I – INTENT

P - PLAN

P - PREPARATION

O - OPPORTUNITY

M - MOTIVE

I - IDENTITY

A – ABSENCE OF MISTAKE OR ACCIDENT

Article 404(B) - State

• Police officer• Victim of crime• Unauthenticated police report (if no Q as to

commission of crime)

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STATE V. TAYLOR2016-1124 (La. 12/1/16)

Notably, [in 1994] when Art. 404(B) was amended, the legislature added La. C.E. art. 1104: “The burden of proof in a pretrial hearing held in accordance with [Prieur] shall be identical to the burden of proof required by [FRE 404.] Article 1103 was subsequently repealed by 1995 La. Acts 1300.

ART. 1103

Codified

State v. Prieur, 277 So.2d 126 (La. 1973),

State v. Davis, 449 So.2d 466 (La. 1984) and

State v. Moore, 278 So.2d 781 (La. 1973[2] ).

STATE V. TAYLOR2016-1124 (La. 12/1/16)

Accordingly, the state cannot simply rely on a boilerplate recitation of the grounds for admissibility stated in La. C.E. art. 404(B). It is the duty of the district court in its gatekeeping function to determine the independent relevancy of this evidence.

7

STATE V. TAYLOR

The district court must also balance the probative value of the other crimes, wrongs or acts evidence against its prejudicial effects before the evidence can be admitted.

STATE V. TAYLOR

In sum, for other crimes evidence to be admissible, the state must comply with the notice requirement set out in Prieur. Additionally, at a pre-trial hearing, the state must provide sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act, and demonstrate that the other act satisfies one of the requirements listed in La. C.E. art. 404(B)(1).

STATE V. TAYLOR

The hearing allows the district court to perform its gatekeeping functions of determining the relevancy of the other crimes evidence and balancing its probative value against its prejudicial effect pursuant to Article 403.

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STATE V. TAYLOR

We find no constitutional requirement for adherence to the [c & c] evidence standard set forth in Prieur. Given the clear language of Code of Evidence Articles 1104 and 104(B), and considering the [USSC’s] holding in Huddleston,

STATE V. TAYLOR

we now recognize and hold that when seeking to introduce evidence pursuant to … art. 404(B), the state need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act.

TAYLOR ON PRIEUR HEARING

We therefore choose to maintain the longstanding requirement of a pre-trial hearing to determine the admissibility of other crimes evidence. We caution, however, that this hearing is not intended to be a “mini trial” of the prior offenses.

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TAYLOR ON PRIEUR HEARING

While the [C & C] burden of proof set forth in Prieur is no longer mandated, other jurisprudential rules and guidelines derived from Prieur and its progeny remain valid and applicable. Thus, the state is still required provide the defendant with written notice before trial that it intends to offer prior crimes evidence.

TAYLOR ONPRIEUR JURY INSTRUCTION

And, the safeguard in Prieur providing for a jury charge regarding the limited purpose for which other crimes evidence is presented remains valid.

TAYLOR ON SUBSTANTIAL INDEPENDENT RELEVANCE

Moreover, even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence must have substantial relevance independent from showing defendant’s general criminal character and thus is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense.

1038168v.1

MICHAEL R. FONTHAM BIOGRAPHICAL INFORMATION

Michael R. Fontham engages in a civil litigation practice as a partner in the New Orleans law firm of Stone Pigman Walther Wittmann L.L.C. His practice primarily involves commercial disputes and utility rate matters and frequently involves administrative trials and other judge trials.

Mr. Fontham authored Trial Technique and Evidence (NITA, 4th ed. 2013), a text on trial advocacy and evidence. He is also an author of Persuasive Written and Oral Advocacy: In Trial and Appellate Courts (Aspen, 3d ed., 2013) (with Michael Vitiello), a treatise on brief writing, oral argument and appellate practice that expands and updates his Written and Oral Advocacy (Wiley, 1985).

Mr. Fontham teaches evidence as an adjunct professor at the Tulane University Law School, where he has four times been awarded the Monte M. Lemann award for distinguished teaching, and at the LSU Law Center, where he also taught appellate advocacy and other subjects. He also taught as a visiting professor at the University of Virginia Law School. Mr. Fontham is an instructor in the National Trial Advocacy College at the University of Virginia, has taught advocacy skills courses at the Law School at Loyola University, and made evidence presentations in the Louisiana Judicial College.

PROFESSOR SHENEQUA L. GREY BIO

SHENEQUA L. GREY is the Clyde C. Tidwell Endowed Professor of Law at the Southern University Law Center in Baton Rouge, La. She joined the Law Center faculty in 2004 and teaches criminal procedure, trial advocacy, evidence, torts, and international criminal law in London, England as a part of the Law Center’s summer abroad program.

Prior to joining the Law Center, Professor Grey worked as a Staff Attorney for the American Prosecutor’s Research Institute, the research affiliate of the National District Attorney’s Association in the Washington, DC metropolitan area. She then served as an Assistant District Attorney in the Caddo Parish District Attorney’s office in Shreveport, Louisiana where she prosecuted a number of violent crimes including second degree murder and sex offenses.

Professor Grey is the author of An Anatomy of Louisiana Evidence Law: Code, Commentary, Cases, & Problems, an evidence casebook published by Carolina Academic Press (available at www.greyevidence.com), as well as the interactive casebook supplement Casebook Advantage (www.casebookadvantage.com). She is also the founder and CEO of the Master Advocates Academy, which provides online advocacy training to lawyers and law students. The premiere course is Interactive Courtroom Evidence Training Video Modules, which includes over 100 animated interactive courtroom scenes which helps train attorneys and law students to make and respond to objections using the rules of evidence (www.masteradvocatesacademy.com). Grey has also published several law review articles in the areas of constitutional criminal procedure and Louisiana evidence, including her most recent article, Thirty-Nine Distinctions between the Louisiana Code of Evidence and the Federal Rules of Evidence, published by Tulane Law Review.

She is licensed to practice law in Louisiana and the District of Columbia. She received her Bachelor’s Degree from the University of Louisiana at Monroe and her Juris Doctor degree (cum laude) from the Southern University Law Center, where she was a member of the Moot Court Board and successfully argued State v. Raymond Laguand before the Louisiana Supreme Court as a student attorney in the Law Center’s Criminal Law Clinic. She was also a member of the SULC Championship Mock Trial team in the LSBA Intra-State Mock Trial Competition. She received her LL.M. from Temple University- James E. Beasley School of Law with a concentration in trial advocacy, where she received the honor of being voted Most Prepared Student by her peers. She is also a graduate of the Atlanta Broadcast Institute in Atlanta, Georgia where she studied Radio and Television Broadcasting.

BOBBY HARGES BIO

BOBBY HARGES is the Adams and Reese Distinguished Professor of Law at Loyola University New Orleans. He received a B.S. degree from Mississippi State University and law degrees from the University of Mississippi School of Law and Harvard Law School. He has written several books on Louisiana evidence law, criminal law, DWI law & ADR.

Mr. Harges has taught Insurance Law, Torts, Evidence, Mediation and Arbitration, Arbitration Advocacy, and Criminal Law and Procedure. He is licensed to practice law in Louisiana and Mississippi and has an active mediation and arbitration practice with MAPS in Mississippi and Louisiana. As a neutral with over twenty-seven (27) years of experience, he has mediated, arbitrated, and/or served as a special master in over one thousand cases.