July 15, 2015 § Leave a comment
Back in the day, before the MRE, lay opinion testimony was objectionable on the basis that opinions are not facts, and the fact-finder is able to draw its own inferences and conclusions
Nowadays, however, MRE 701 specifically allows lay opinion testimony if three elements are present:
- The testimony is rationally based on the perception of the witness; and
- It would aid the fact-finder in understanding the witness’s testimony or the determination of a fact in issue; and
- It is not based on scientific, technical, or other specialized knowledge within the scope of MRE 702.
In family law, we customarily hear the grandparent asked something like, “Who do you think is the better parent?” followed swiftly by a dreary objection, which should be overruled if the grandparent had the opportunity to observe. The weight of that kind of testimony is most often light as a mote of dust, but it is nonetheless admissible.
But what about the fact that the grandparent is being asked to comment on the ultimate issue? That was verboten in the common law. MRE 704 abrogated that rule, and testimony otherwise admissible is not objectionable now merely because it embraces an ultimate issue to be decided by the trier of fact.
Of course, the chancellor may always exclude lay opinion testimony on the ground that it would not be helpful, but I think it’s better to let it in and give it the weight that it deserves.
Lay opinion testimony is a subject we’ve touched on here in a previous post. As a practice matter, your best approach is to limit lay opinion testimony and focus your case on developing facts. Facts, after all, are what you need in the record to provide a substantial basis for the chancellor’s ruling. Some lay opinion testimony, however, can be mighty powerful. For instance, you are representing the father in a custody case, and the parents of the mother testify that, in their opinion, based on what they observed, the children would be better off with the father. That can be pretty persuasive.