About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

13 N. Y. L. F. 651 (1967)
Expert Opinion Evidence

handle is hein.journals/nyls13 and id is 665 raw text is: EXPERT OPINION EVIDENCE JOHN VAN VOORHIS* As a general rule, witnesses must testify to facts and not to their opinions1 and conclusions drawn from the facts.2 Thus, a witness cannot give his opinion as to whether more force was used than was necessary by a railroad company in ejecting a passenger,' whether certain transactions and conversations amounted to an agreement)4 whose negligence caused an accident,5 whether a bridge was a safe place to work or the condition of a highway dangerous, and whether a fire was of incendiary origin.7 The basis for excluding such opinions is that it is the province of the jury to draw the inferences where conflicting inferences may be drawn from the facts supported by evidence. It is sometimes said that a witness is not permitted to express his opinion, under such circumstances, upon the very issue which is before the jury.8 There are exceptions to this rule of opinions given by ordinary witnesses. Thus, an ordinary witness may testify to the identity of a person,9 even to the identity of his voice over the telephone, if he is acquainted with the sound of his voice.' An ordinary witness may * Associate judge, New York Court of Appeals, Retired. 1 The word opinion, as used today, denotes a belief, inference, or conclusion without suggesting that the opinion is well or ill founded. This is in contrast to the earlier usage of the word by the English courts which denoted the meaning of notion or that the witness' mind was persuaded without proof or knowledge. McCormick, Evidence § 11 (1954). 2 McCormick believes that the distinction between fact and opinion is one of degree rather than one of quality. He feels that facts, as contrasted with opinions, are a more concrete and specific form of descriptive statement, whereas opinions are merely less specific and less concrete in form. McCormick believes, therefore, that the opinion as it operates today is really a rule of preferences in that it prefers more concrete descriptions to those less concrete, and the direct form of statement to the inferential. Id. Wigmore states that an opinion should be rejected only when it is superfluous in the sense that it will be of little or no value to the jury. 7 Wigmore, Evidence § 1918 (3d ed. 1940). 3 Evidence of a lay witness as to the safety of the manner in which passengers were discharged from a railroad car was excluded in Regner v. Glens Falls R.R., 74 Hun. 202 (3d Dep't 1893); Barlow v. Salt Lake & U.R.R., 57 Utah 312, 194 P. 665 (1920). 4 Hillock v. Grape, 111 App. Div. 720 97 N.Y.S. 823 (4th Dep't 1906). 5 Crofut v. Brooklyn Ferry Co., 36 Bkrb. 201 (1862). 0 Opinion by an ordinary witness as to the dangerous condition of a crossing was excluded in Bailey v. Baltimore & Ohio R.R., 227 F.2d 344 (2d Cir. 1955). 7 People v. Grutz, 212 N.Y. 72, 105 N.E. 843 (1914). 8 Moran v. Standard Oil Co., 211 N.Y. 187, 105 N.E. 217 (1914). 0 Pallas v. Funk, 27 Ariz. 170, 231 P. 919 (1925) ; Hulett v. Hulett, 152 Miss. 476, 119 So. 581 (1928); Moran v. Standard Oil Co., id.; Devlin v. McCauley, 295 Pa. 101, 144 A. 828 (1929). 30 Murphy v. Jack, 142 N.Y. 215, 36 N.E. 882, rev'g 76 Hun. 356 (1894).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most