§ 23.03 Opinion Rule: FRE 701
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[A] Rationale
What is the problem the opinion rule is intended to solve? The opinion rule is often misunderstood because the terms "opinion, inference, and conclusion" can be used in a variety of ways in common parlance. In contrast, Rule 701 has a very narrow focus. The following three hypotheticals are used to tease out the issue.
Hypothetical I: Firsthand knowledge. Suppose "that as the witness was leaving a room in which A, B and others remained, he saw A advance toward B with clenched fist, and on his return to the room later, he saw B wiping blood from his nose and lips and A with skinned knuckles[.] [H]is statement that A struck B would be the result of a conscious deduction from what he saw to what had happened."12 What evidence rule governs this type of "conscious deduction," opinion, inference, or conclusion? Since the witness was out of the room at the time the blow was struck, she has no personal knowledge, and Rule 602 governs.13 There is no need to resort to Rule 701, although that rule also codifies the firsthand knowledge requirement by specifying that the opinion be "rationally based on the witness's perception."
Hypothetical II: Expression of uncertainty. Suppose two bank customers, both with firsthand knowledge, testify as prosecution witnesses concerning the identity of the perpetrator in a bank robbery case:
Witness A: "The defendant was the robber."
Witness B: "In my opinion, I believe that the defendant was the robber."
The difference between A's testimony and B's may indicate that B did not get as good a look at the robber, but the difference may also be the result of how two different people express themselves. Witness B may simply be more careful in her mode of expression. The phrase, "In my opinion, I believe" is implicit in Witness A's testimony.14 In any event, assuming firsthand knowledge, a witness need not be positive.15 Again, Rule 701 is not implicated.
Hypothetical III: The real issue. The following hypothetical illustrates the problem that Rule 701 addresses. Assume a witness observes a bank robbery and is called by the defense in support of an insanity defense. The witness could testify in one of the following three ways:
(1) "The defendant acted like he was insane during the robbery."
(2) "The defendant acted in a bizarre manner and spoke incoherently."
(3) "The defendant was running around naked and screaming that he was the Governor of Arkansas."
Which statement is preferable? Number (1) is the most abstract, and thus the least helpful. In addition, the testimony contains a word (insane) that has a specific legal meaning. Number (2) falls between (1) and (3). As a policy matter, the jury is better served if it hears the witness's primary sensory impressions rather than opinions, conclusions, or inferences drawn from those impressions. If the witness can give the jury (3), then (1) and (2) are superfluous.16 More importantly, the jury may not fully appreciate what transpired when only number (1) is provided (perhaps less so with (2)).
If opposing counsel objects to (1) or (2) and the judge strikes those statements, the offering party may rephrase the question and ask the witness to tell the jury specifically what the witness saw—i.e., number (3). Accordingly, Rule 701 is not a rule of exclusion but a rule of preference; the judge strikes (1) and (2) because (3) is preferred. Of course, a good trial attorney will want to elicit (3) on direct examination because it is the more convincing version. Moreover, cross-examination is available if either (1) or (2) is admitted. These reasons support a flexible application of the opinion rule, i.e., Rule 701's helpfulness standard.
Is there a number (4)? In other words, can the witness be even more specific than (3)? Sometimes the witness is being as specific as possible, either (a) because she is not very articulate or (b) because it is difficult for any of us to break down certain opinions without losing their meaning (e.g., "The wood was rotten," or "The floor was slippery.").
In sum, the lay opinion limitation is a rule of preference as to the form of testimony, not a rule of exclusion. Primary sensory impressions are preferred to opinions, conclusions, or inferences. Exclusion is only the means used to bring forth more concrete testimony when it is possible to do so.
[B] Common Law "Fact-Opinion" Formulation
At common law, lay witnesses could testify to facts and not opinions, inferences, or conclusions. The courts, however, recognized an exception, sometimes known as the "shorthand rendition" rule or "collective facts" exception.17 This exception permitted opinions concerning the identity of persons, things, and handwriting; size, color, and weight of objects; times and distance; mental state or condition of another; insanity and intoxication; affection of one person for another; physical condition of another, such as health or sickness; and values of property.18
Criticism. Despite its wide acceptance, the common law rule was sharply attacked.19Wigmore advocated its abolition.20 There were several lines of criticism. First, the application of the traditional rule turned on an illusory fact-opinion categorization.21 For example, a witness who testifies that a defendant had "slurred speech" and "staggered" when he walked is using inferences as much as the witness who testifies that the defendant was "intoxicated"; the difference is one of degree.
Second, witnesses frequently use inferences while testifying, since it is the natural way to tell a story (in some cases, it is the only way). "Opinions are constantly given. A case can hardly be tried without them. Their number is so vast, and their use so habitual, that they are not noticed as opinions distinguished from other evidence."22 Consequently, a strict application of the opinion rule would stultify the presentation of testimony, "making it impossible for the witness to convey to the jury what he has observed."23
Third, the traditional rule is often unnecessary. The adversary system has built-in mechanisms that mitigate the undesirable effects of opinion testimony. Because "the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage," counsel will tend to elicit concrete rather than abstract testimony.24 Furthermore, opposing counsel can expose through cross-examination the weaknesses in opinion testimony.25
Finally, the opinion rule produced much unnecessary litigation, inviting "numberless trivial appeals and . . . many indefensible reversals."26
[C] Rule 701
Instead of codifying the common law fact-opinion dichotomy and an ill-defined exception, Rule 701 adopts a different approach. Rule 701 is a rule of preference as to the form of testimony, not a rule of exclusion. Primary sensory impressions are preferred to opinions, conclusions, or inferences drawn from those impressions. Exclusion is only the means used to bring forth more concrete testimony when it is possible to do so. Hence, if an objection is sustained, counsel can rephrase the question, asking for more specific information.
Requirements. Rule 701 provides that the opinion of a nonexpert is admissible if (1) rationally based on a witness's perception, (2) helpful to a clear understanding of the witness's testimony or to the determination of a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702, which governs expert testimony.27
Firsthand knowledge. The requirement that the opinion be rationally based on perception, at the very least, embodies the firsthand knowledge rule.28 According to the Second Circuit, "Rule 701(a) requires that lay opinion testimony be both (a) based on the witness's first-hand perceptions and (b) rationally derived from those firsthand perceptions."29 The court ruled that lay opinion testimony about the accused's state of mind was inadmissible because it was based only on a single conversation and no other firsthand experiences. In a later case, the court reached the opposite result where the witness had known the accused for several years before the conversation in question and had participated in a fraudulent incident with him. Moreover, the witness did not speculate about general knowledge or intent but testified about discrete matters.30
Helpfulness. In deciding whether the opinion is helpful, the trial court should consider several factors.31 One is the ability of the witness to express herself;32 the more articulate the witness, the less need for an opinion—i.e., whether the "jury could not be put in possession of all the facts necessary to its decision."33 A second factor is the importance of the issue to which the opinion relates; the more crucial the issue, the more important it is for the witness to supply, if possible, the underlying facts.34 Finally, a witness's use of common terms that also have a specific legal meaning, such as "rape" and "insanity," should be explained.35
Cases decided under Rule 701 cover a wide-range of subjects, including lay opinion testimony on a person's mental condition (insanity),36 the identification of persons in bank surveillance videotapes,37 the description of a person's movements as...
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