Expert Testimony
This trap appears as a wrong-answer choice in 2 active questions. Spotting how it is built is the repair: read each example's “why it's attractive” before the “why it's wrong.”
Subject distribution
- Evidence2
Example wrong choices
18959_barnabas-coach · EVIDENCE · Choice ADr. Luke never had an opportunity to examine Barnabas before forming his opinion.
Why it's wrong
Choice A is not the credited answer for this item.
18959_barnabas-coach · EVIDENCE · Choice BDr. Luke's testimony embraces the ultimate issue.
Why it's wrong
Choice B is not the credited answer for this item.
18959_barnabas-coach · EVIDENCE · Choice DDr. Luke based his opinion entirely on what he observed while in the courtroom.
Why it's wrong
Choice D is not the credited answer for this item.
22218_barnabas-homicide-trial · EVIDENCE · Choice AThe doctor's opinions were based entirely upon courtroom observations.
Why it's attractive
FRE 703 permits experts to base opinions on facts observed in the courtroom. This choice says the opposite — that courtroom observations are a ground for exclusion. Direct contradiction of the rule text.
Why it's wrong
FRE 703 permits experts to base opinions on facts observed in the courtroom. This choice says the opposite — that courtroom observations are a ground for exclusion. Direct contradiction of the rule text.
22218_barnabas-homicide-trial · EVIDENCE · Choice BThe doctor's testimony embraces the ultimate issue.
Why it's attractive
Students who learned the old common-law rule will think 'embraces the ultimate issue' is a valid objection. But FRE 704(a) abolished that bar. The Gold Key distinction: FRE 704 permits ultimate-factual-issue opinions, but the expert still cannot state the legal conclusion that the jury must reach.
Why it's wrong
Students who learned the old common-law rule will think 'embraces the ultimate issue' is a valid objection. But FRE 704(a) abolished that bar. The Gold Key distinction: FRE 704 permits ultimate-factual-issue opinions, but the expert still cannot state the legal conclusion that the jury must reach.
22218_barnabas-homicide-trial · EVIDENCE · Choice DThe doctor had insufficient opportunity to examine Barnabas.
Why it's attractive
FRE 702 does not require personal examination as a prerequisite to expert testimony. The fact that the doctor never examined Barnabas affects how persuasive the jury finds the testimony, not whether it's admissible.
Why it's wrong
FRE 702 does not require personal examination as a prerequisite to expert testimony. The fact that the doctor never examined Barnabas affects how persuasive the jury finds the testimony, not whether it's admissible.
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