IMPROPER LAY OPINION (O)
FRE 701
A question or answer may be objected to on the basis of improper lay opinion if the question and/or answer elicits information that is not based on the witness’s personal knowledge, where adequate foundation has not been laid, or when the lay witness is being asked a question that requires expert testimony under Rule 702. Otherwise, lay witnesses are permitted to give opinion testimony about events which they have personally observed, or is based on the witness’s prior experience or practices.
Examples
- “I turned my head to the left. There was a big cloud of blue smoke that came from the one-shot Derringer.” (Lay witness with no evidence of knowledge about one-shot Derringers)
- “Was the President close enough to the viewing box door to be in the range of a Derringer?” (Lay witness with no evidence of knowledge about one-shot Derringers)
- “Agree or disagree: a Derringer was the best firearm for this type of shot.” (Lay witness with no evidence of knowledge about one-shot Derringers)
- “Little could save him. A shunt could have reduced the pressure on his brain, but the wound was inevitably fatal.” (Lay witness with no evidence of medical knowledge)
FRE 701. Opinion Testimony by Lay Witness
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Summary
Lay opinion testimony is admissible when it is (a) rationally based on perceptions, (b) helpful to the trier of fact, and (c) not expert opinion under rule 702. Often times, lay opinion testimony will be admitted, as long as proper foundation is laid. The foundation must show that the opinion is based on the witness’s rational perceptions or previous experiences or practices. No opinion of law may be given by a lay witness.
However, lay witnesses may express opinions, inferences, or conclusions, as long as they are helpful to understanding or fact determination.
Case Law (Improper Lay Opinion)
- U.S. v. Toll, 804 F.3d 1344 (11th Cir. 2015) (accountant who had not been qualified as an expert allowed to testify for prosecution as lay witness that defendant’s accounting did not satisfy generally accepted accounting principles)
- U.S. v. J.J., 704 F.3d 1219 (9th Cir. 2013) (lay witnesses who had some, but limited, personal observation and interaction with defendant, were allowed to testify defendant appeared to be of average intelligence and maturity for someone in his late teens, as defendant was; used in decision to permit adult rather than juvenile prosecution)
- United States v. Page, 521 F.3d 101 (1st Cir. 2008) (testimony from police officers regarding the typical method of criminals during a drug transaction was permissible lay opinion testimony after foundation was laid showing officers had requisite experience)
- United States v. Kaplan, 490 F.3d 110 (2d Cir. 2007) (no rational basis for opinion testimony where witness's perception was based on vague interactions with defendant)
- United States v. Hoffecker, 530 F.3d 137 (2008) (testimony about interpretation of a tape-recorded conversation is impermissible lay opinion; also implicates best evidence rule)
- Union Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d 684 (Fed. Cir. 2001) (lay opinion must be based upon personal perception or specialized knowledge and would assist the trier-of-fact in understanding the evidence)
- Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203 (5th Cir. 1998) (lay witness was allowed to testify on the meaning of a term in the contract based upon his experience in the industry and as the drafter of the document)
- Winant v. Bostic, 5 F.3d 767 (4th Cir. 1993) (testimony of a state official about the party’s state of mind was admissible because it was based on prior professional dealings and discussions with party regarding real estate permits)