§ 23.04 KEY POINTS

• Jurisdiction: United States

§ 23.04. KEY POINTS

Firsthand Knowledge Rule: FRE 602

Rule 602 requires that a witness have personal knowledge of the subject about which the witness testifies. A witness's expression of uncertainty, such as "I think," "I believe," or "I'm not positive," is not grounds for exclusion so long as the witness had an opportunity to observe. Typically, proof of firsthand knowledge is supplied by the witness.

Standard of proof. The trial judge does not decide whether or not a witness has firsthand knowledge by a preponderance of evidence (the usual standard), but only whether sufficient evidence to support a finding of firsthand knowledge has been introduced, i.e., a prima facie standard. If sufficient evidence has been adduced, the witness may testify, and the jury decides whether or not the witness had firsthand knowledge. In effect, Rule 602 is a specialized application of the conditional relevancy principle of Rule 104(b).

Opinion Rule: FRE 701

The opinion rule is often misunderstood because the terms "opinion, inference, and conclusion" can be used in different ways in common parlance. In contrast, Rule 701 has a very narrow focus.

Common law. 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. 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.

Rule 701. Instead of codifying the common law fact-opinion dichotomy approach, Rule 701 adopts a different formula. 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.

The rule provides that the opinion of a nonexpert is admissible if (1) rationally based on the perception of the witness (firsthand knowledge), (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue, and...