Under California Evidence code section 805, expert witnesses may testify to the ultimate issue. According to West's Annotated California Codes this is declarative of existing [case] law. The code was passed in 1965 and became operative in 1967.
West's also states application of law to facts is a legal question which is not a subject of expert testimony and cites some cases such as WRI Opportunity Loans II, LLC v. Cooper, 154 Cal. App. 4th 525 (2007) which states:
FOOTNOTES
3 In response to the trial court's request for supplemental briefing, the Coopers and WRIO submitted declarations from experts who offered conflicting opinions on the undisputed facts as to whether the loan is a shared appreciation loan. These declarations do not raise triable issues as to the proper characterization of the loan. Generally, Evidence Code section 805 permits expert testimony on the ultimate issue to be decided by the fact finder. However, this rule “does not … authorize an ‘expert’ to testify to legal conclusions in the guise of expert opinion. Such legal conclusions do not constitute substantial evidence. [Citation.]” (Downer v. Bramet (1984) 152 Cal. App. 3d 837, 841 [199 Cal. Rptr. 830]; see also Elder v. Pacific Tel. & Tel. Co. (1977) 66 Cal. App. 3d 650, 664 [136 Cal. Rptr. 203].) Thus, even lawyers may not testify as to legal conclusions, or “ ‘state interpretations of the law, whether it be of a statute, ordinance or safety regulation promulgated pursuant to a statute [citations].’ ” (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal. App. 3d 1, 67 [221 Cal. Rptr. 171]; see Downer v. Bramet, supra, 152 Cal. App. 3d at p. 841.) As the court explained in Downer v. Bramet, at page 841: “ ‘The manner in which the law should apply to particular facts is a legal question and is not subject to expert opinion. [Citation.]’ ”
There is a contract case where testimony was allowable so I will look at it next. Jones v. P.S. Development Co. Inc., 166 Cal.App.4th 707 (2008).
I'm just trying to figure this out.
Kent-I don't think California has adopted the Federal rules but I could be mistaken. Nonetheless, your sections probably are helpful. Edit-they are very useful after reading them.
-break-
From Jones v. P.S. Development Co., Inc., 166 Cal. App. 4th 707 (2008):
Jones contends that Waldo offered inadmissible opinions on questions of law, namely, Lloyd's duties under its contracts with Boeing and Comet. Generally, even lawyers may not testify as to legal conclusions. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 67 [221 Cal. Rptr. 171]; Downer v. Bramet (1984) 152 Cal.App.3d 837, 842 [199 Cal. Rptr. 830].) Nonetheless, in interpreting a contract, courts may properly consider the acts and conduct of the parties following the contract's execution. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 472 [80 Cal. Rptr. 2d 329].) As Witkin explains, “[t]he conduct of the parties may be, in effect, a practical construction thereof, for they are probably least likely to be mistaken as to the intent.” (1 Witkin, Summary of Cal. Law, supra, Contracts, § 749, p. 838.) Here, Waldo, who was Lloyd's onsite supervisor, described his understanding of Lloyd's contractual duties in the context of his discharge of those duties. In our view, the trial court did not err in consulting Waldo's declaration to resolve Jones's contentions about Lloyd's duties under the contracts.
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From Kent's 704 link:
They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, “Did T have capacity to make a will?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed. McCormick §12.
> Kent-I don't think California has adopted the Federal rules but I could be mistaken. Nonetheless, your sections probably are helpful. Edit-they are very useful after reading them.
>
Captain Smith,
Perhaps read California Evidence Code Sections 800-805 again and compare to the federal rules of evidence. It may change your opinion. My understanding is they are basically the same effect. I.e., CA doesn't reference the federal rules, instead they use them as the framework for their own state specific law.
Or so I've been told.
Captain Smith? You had me there for a minute LOL then I read my own tag line.
Yes they are nearly identical.
The Annotated Code says they were declarative of existing law when they were passed in 1965. Beginning in the mid-1940s several California appellate decisions changed the old rule against opinion testimony (People v. Wilson, 25 Cal.2d 341, 1944; Wells Truckways, Ltd. v. Cebrian, 122 Cal.App.2d 666, 1954 and others).
Thanks for posting this Dave. Great read and cite's:good:
Federal Rules of Evidence
According to the link below (a 2010 copy of the FRE printed for Congress), the Federal Rules of Evidence were enacted by Congress in 1975 after California's Evidence Code (passed in 1965).
Rule 704 on Ultimate Issue testimony was last amended in 1984.
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Evidence.pdf
Federal Rules of Evidence
Well there you go. Eventually people often do come around to the California ways of thinking.
Per Josh Camson's "History of the Federal Rules of Evidence".
The Federal Rules of Evidence were based in part on the California Evidence Code.
On a similar note, perhaps someday others may also come to realize the sanctity of the written instrument that the California Courts have recognized.
:-O
Federal Rules of Evidence
Yes, after veering back and forth from Young v. Blakeman in 1908 to the Armitage decision in 1990 the California Courts have signaled a pretty strong preference for the record line (however you construe that). Prior to Young the controlling law was a long-term acquiescence case; if you are familiar with the Title history of California from the Wild West until things started to settle down after 1900 you can see a concurrent tightening of the requirements for resolving disputes. I am still researching my proposed Agreed Boundary Doctrine article so I don't want to say too much especially since I may find out one or two of my working hypothesises need to be revised.
The fact story of Armitage is a farce and a comedy at the same time. It involves a misbehaving Attorney pushing dirt onto his neighbor's land and into a creek without any permits. The Court slammed him pretty hard and in fact he surrendered his Bar membership in the last decade because he was under investigation (for what I don't know).
Federal Rules of Evidence
> .... I am still researching my proposed Agreed Boundary Doctrine article so I don't want to say too much especially since I may find out one or two of my working hypothesises need to be revised.
>
Many great literary works have taken liberty with factual representation in favor of dramatic effect.
I look forward to the read.
