Opinion Testimony is Very Limited

People often ask, what evidence is allowed in court? Witnesses can generally testify about what they personally saw or heard. When it comes to their opinions, however, the rules are very strict. A recent New Hampshire Supreme Court decision illustrates this point well.

Mother as a Witness

The prosecutor charged the defendant, Richard Waite, with multiple counts of sexually abusing children. At the trial, Waite’s attorney called Waite’s mother as a witness. The attorney asked the mother if she herself had been a victim of sexual abuse when she was younger. The prosecutor objected to the question.  The defense lawyer justified the question by arguing that because the mother herself had been a victim, she was more keenly aware of the signs of abuse. Since the mother did not notice any signs of abuse, this would back up her credibility.

Mother’s Prior Abuse Not Allowed as Evidence

The judge however, felt that this testimony was an indirect way of giving the mother’s opinion about whether the abuse occurred. On appeal, the Supreme Court upheld the judge’s decision. The Supreme Court’s reasoning was that, even if there was some relevance to the testimony, the defense did not disclose it to the prosecutor in advance. The prosecutor should have had a chance to investigate the accuracy of the mother’s testimony. If the prosecutor had received proper notice, he also would have had a chance to get his own expert. Such an expert could possibly have countered the view that the mother’s own abuse made her better able to tell if a child was a victim. To read more about this decision, read the Court opinion in State v. Waite.

Trial Lawyers Must Know All of the Rules

The rules of evidence dictate what evidence lawyers can, and cannot, bring into court. These rules can be very complicated. Many law students find Evidence to be one of the most difficult classes in law school. Yet knowledge of the rules of evidence is essential for trial lawyers. In order to properly prepare trial lawyers must know in advance exactly what evidence the jury will hear. It is equally important for lawyers to understand the rules of court, which dictate what evidence must be disclosed to the other party in advance.

That is not to say the lawyer int his particular case made a mistake. There is no way to know this from the Court decision. Often lawyers have to do the best they can with a difficult case, and it seems this example may have been one of them.




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