Accurately Describes

We saw in the first heading that the practitioner must establish that the witness has the proper basis of knowledge upon which to draw from to deliver the information they possess to the factfinder. For testimony based upon what a witness saw or heard, the proponent must establish that they are testifying from their own personal knowledge about something they personally heard, experienced or observed. Fairow went on to add that a witness can give the jurors their own opinion or inference about what they saw or heard so long as the opinion or inference is based on their personal observation and is reasonable. Thus, the question "Did X intend to shoot Y" would be inadmissible, but the question "based on what you saw, did it appear to you that X shot Y intentionally" would be allowed. In our flowchart, Step 1 - proper knowledge - is established by proving to the court that the witness observed the facts personally. Once that first step is established, Rules 602 and 701 vouch for the accuracy of any testimony relating to a personal experience and reasonable inferences from those experiences, thus fulfilling Step 2 - accurately describes.

For an opinion that requires expertise, Step 1 - proper knowledge - requires that the practitioner qualify the witness as an expert witness by establishing that the witness has specialized education, training or experience in the area about which they are giving an opinion, regardless of whether that expert opinion is in a "soft" science like psychology (Coble) or a "hard" science like DNA fingerprinting (Kelly). In order to satisfy Step 2 - accurately describes - the opinion must be reliable and helpful to the jury. To prove that the opinion is accurate or reliable, the proponent must establish that it 1) is based on a valid theory 2) properly applied. Helpfulness depends on the faacts of each case, but the opinion must be tied to an element of the offense, a statutory defense or justification, or an issue that has arisen during the trial by one side. If the proponent is successful in convincing the court, then Rule 702 says that such testimony is accurate enough to be heard by the jury.

Fairow, Coble and Kelly all deal with how a witness can offer a juror their observation or opinion. We turn now to how a witness can offer a juror some piece of physical evidence like a gun or knife, a photograph, picture or audio recording, or a piece of digital evidence like a text message or social media page. In following our 4 step process of admissibility, the practitioner still must establish that the witness sponsoring any of these items has the proper basis of knowledge. In this heading, we will see how Rule 901 establishes the accuracy step in our 4 step process of admissibility.