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.
April 10, 2014 § 1 Comment
I won’t repeat the old saying about opinions being like a particular part of the body, everybody has one. Or maybe I just did.
Lay opinion testimony seems to draw objections like flies to day-old watermelon, but the rule on lay witnesses offering their opinions is pretty straightforward. MRE 701 says:
If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of [testimony by experts].
That is all there is to it. Oh, and MRE 704 abolishes the old “ultimate issue” rule, which means that, if the lay person’s testimony meets the criteria of R701, it matters not at all whether it embraces an ultimate issue to be decided by the trier of fact.
So, if the witness is opining “rationally based” on his or her own perception, and it aids the fact-finder, and is not based on scientific or technical knowledge, it should come in.
- The detective opined that a particular document was not on a hard drive that he had examined. The court found it to be valid lay opinion because almost everybody nowadays has some knowledge of computer hard drives. Boone v. State, 811 So.2d 401 (Miss. 2001).
- Lay witnesses may offer their opinion whether someone had too much to drink or was intoxicated. Havard v. State, 800 So.2d 1193 (Miss. App. 2001).
- A lay witness may offer an opinion as to how fast, in mph, a person was driving, based on what he observed. Moore v. State, 816 So.2d 1022 (Miss. App. 2002).
- A licensed counselor could not offer lay opinion testimony about whether the wife was addicted to internet pornography because he did not have personal knowledge of the extent of her use of the internet. Bower v. Bower, 758 So.2d 405 (Miss. 2005).
Remember that if you try to offer lay opinion testimony and the judge sustains an objection to the offer, you must preserve the point by making an offer of proof. If you don’t, you can’t argue the point on appeal. See, Redhead v. Entergy Miss., Inc., 828 So.2d 801 (Miss. App. 2001).
Don’t assume that if your expert witness is excluded that you will be able to get that witness’s same testimony as lay opinion. As the Bower case above illustrates, the lay witness must have some perception of the event — some personal knowledge — and if he does not, his testimony would be inadmissible. Many experts have only theoretical knowledge upon which to base an opinion.
One mistake inexperienced lawyers make is to ask lay witnesses who actually saw or experienced an event their opinions about it. Most of the time it is far more powerful and effective to ask the witness to relate what she saw, felt, smelled, or heard. For example: “Can you tell me whether Johnny was dying?” is far less effective than to ask, “Tell us what you observed about his head when you arrived.” Answer: “His face was smashed up; his skull was cracked open so you could see his brains, he was covered with blood; blood was spattered on the wall behind his head, his eyes were rolled back, and he wasn’t breathing.”
Lay opinion testimony can be a useful tool in many trials, particularly in family law cases. Standing alone it may not carry the day for you, but it could be just the featherweight of advantage you need to tip the scales in a close case.
September 7, 2010 § 3 Comments
Some lawyers argue that lay opinion testimony should be strictly proscribed as not helpful to the court and an invasion of the court’s fact-finding province. Others attorneys respond that those concerns are overblown and that the court can filter out any ill effects. Here is a rough transcript of an exchange that happened in my courtroom recently. Judge for yourself:
Q: Now, you said a moment ago that you plan to file for bankruptcy. Do you know what effect bankruptcy will have on your income?
Opposing counsel: Objection. He can’t possibly know what effect bankruptcy would have on his income. He is not an expert.
Counsel: But, judge, he can state his understanding based on what he trying to accomplish by filing bankruptcy.
Court: I believe that any ordinary person with walking-around sense would know what effect bankruptcy would have on their income. I will overrule the objection. Repeat the question for the witness, please.
Q: Do you know what effect bankruptcy will have on your income?