Opinion Testimony
| Publication year | 1993 |
| Pages | 1185 |
1993, June, Pg. 1185. Opinion Testimony
This article discusses the Colorado Rules of Evidence ("CRE")(fn1) governing opinion testimony, both lay and expert. It is not intended as an exhaustive treatment of these subjects,(fn2) but presents the basic evidentiary concepts. Familiarity with these basic concepts should allow practitioners to address most evidentiary issues that might arise during or prior to hearing.(fn3) This article first addresses lay opinion testimony. The admission of expert testimony is discussed next. Finally, the article reviews two recent cases dealing with the admissibility of novel scientific testimony.
Discussion of opinion testimony usually focuses on experts. However, counsel must remember that there is a separate rule permitting lay witness opinion testimony under certain limitations.(fn4)
If the witness is not testifying as an expert, his 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 and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
CRE 701 contains the two basic limitations on the admission of lay opinion testimony.(fn5) First, the opinion must be "rationally based on the perception of the witness." Second, the opinion must be "helpful to a clear understanding of his testimony or the determination of a fact in issue."(fn6) Each of these limitations is discussed in turn.
The fundamental requirement for the admission of lay opinion testimony is that it be grounded in the witness' firsthand observation of the subject matter. This requirement embodies the personal knowledge requirement of CRE 602 and prevents an objection based on speculation.(fn7) This contrasts with expert opinions, which need not be based on personal knowledge, as discussed below. The following two cases illustrate how the first-hand knowledge requirement is applied.
In People v. Garcia,(fn8) the defendant was being tried for burglary of a parking lot money depository. The witness was a police officer with fourteen years' involvement in law enforcement, experience in investigating burglaries of parking lot money depositories, and familiarity with the tools used to extract money from such boxes and the condition of bills so removed. The witness had observed the defendant standing in front of and raising his hands to the money box immediately before he was apprehended. On his arrest, several torn bills were found in the defendant's possession. The witness was permitted to express an opinion that the tears found on those bills were consistent with tearing that occurs when bills are extracted from a parking lot depository. The Colorado Court of Appeals affirmed.
In Graham v. Lombardi,(fn9) by contrast, the absence of personal observation was fatal to the admissibility of the testimony. The plaintiff was suing two law enforcement officers for the use of excessive force in making an arrest. In justification of the defendants' conduct, a witness was permitted to opine that the plaintiff previously had demonstrated a tendency toward violence. The basis for this testimony was two incidents between the plaintiff and other police officers four years earlier. However, the witness did not have first-hand knowledge of these prior incidents, but learned of them through pre-trial review of police reports. The Colorado Court of Appeals held that the testimony should have been excluded for lack of personal knowledge.
The question of whether the evidence concerning the witness' perception is adequate to support an opinion is a preliminary question for the trial court under CRE 104. The trial court's determination of the preliminary question is not subject to reversal on appeal unless clearly erroneous.(fn10)
In addition to the fact that the witness must have perceived the underlying facts, the opinion must be "rationally based on" that perception. These two elements tend to blend; frequently, the opinion is so closely tied to the underlying perception as clearly to grow out of that perception. In such cases, there is no separate analysis of the "rationally based on" element. However, the following example illustrates the nature of the issue.
In People v. Brown,(fn11) the defendant was on trial for murder. A supervisor of technical services for the Lakewood Police Department testified concerning the sources of duct-tape found on the body and notepaper found in the defendant's truck. First, photographic enlargements, showing torn tape ends and torn paper edges abutting each other, were introduced. Then, the witness opined that the torn ends of the tape on the rope binding the victim's body matched the torn ends of the tape found at the defendant's home, and the tears in the notepaper found in the victim's truck matched the tears from a yellow pad seized from the defendant's home. The basis for the witness' perception having been demonstrated by explanation of the method for identifying the tears, it was proper for the witness to testify as to the match.(fn12) In other words, the opinion was rationally based on the underlying perception.
If the lay opinion is rationally based on the perception of the witness, the final requirement for admission is that the opinion must be helpful to a clear understanding of the witness' testimony or to the determination of a fact in issue. "Helpfulness" frequently is assumed if the perceptual prong is satisfied,(fn13) but the following case demonstrates how this element operates.
In People v. Collins,(fn14) the defendant pulled a gun during a fight and was charged with assault with a deadly weapon. A defense was "apparent necessity." On the question of whether use of a deadly weapon was necessary, the trial court admitted opinion testimony from a third-party witness that "a fight is a fight" and "if two people are to fight, why pull a rifle? I myself don't know why it was pulled."(fn15) The Colorado Supreme Court found that this testimony conveyed information that a mere description of the participants' behavior could not. The opinion therefore was "helpful" to an understanding of the issue. Put another way, lay opinion testimony is helpful "when a witness' expression of his opinion provides the jury with his overall impression and 'brings the particulars into focus.'"(fn16)
Objection is sometimes made to lay opinion testimony that it goes to the ultimate issue. At one time that was generally the law in Colorado,(fn17) but this objection was rendered obsolete by CRE 704. This rule now provides that testimony in the form of an opinion (or...
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