Rule 701: Admissibility of Opinion Testimony by Lay Witnesses

• Publication year: 1997
• Pages: 63
• Citation: Vol. 26 No. 3 Pg. 63

26 Colo.Law. 63 Colorado Lawyer 1997.

1997, March, Pg. 63. Rule 701: Admissibility of Opinion Testimony by Lay Witnesses

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63

Vol. 26, No. 3, Pg. 63

The Colorado Lawyer
March 1997
Vol. 26, No. 3 [Page 63]

Specialty Law Columns
Civil Evidence
Rule 701: Admissibility of Opinion Testimony by Lay Witnesses
by Matthew J. Rita

Matthew J. Rita is an associate with the Denver firm of Holme Roberts & Owen LLP, (303) 861-7000

Persons interested in submitting articles for publication in this column may contact Lawrence Zavadil with Holme Roberts & Owen LLP in Denver, (303) 861-7000

Q: Is lay opinion testimony admissible if the jury can resolve the disputed fact issue without the aid of the opinion

A: Yes, if there is some basis for concluding that the lay opinion is more likely to be correct than the jury's independent resolution of the issue.

Assumed Facts

After dropping out of law school, Marvin Malingerer began passing his time by loitering in a downtown Denver convenience store. Concerned that Malingerer's presence was bad for business, the store's owner, Manny Merchant, regularly confronted Malingerer and told him to stay off the premises.

One afternoon, while Merchant was preoccupied with his paying customers, Malingerer slipped into the store unnoticed. Eluding Merchant's disapproving gaze, Malingerer crouched down behind the magazine rack and began paging through his favorite periodicals. Moments later, a bus passing by the store veered out of control and struck a parked car. During the ensuing confusion, Malingerer dashed out of the store and jumped onto the bus. He later commenced a pro se personal injury action against the bus company, claiming that he had been a passenger on the bus when the accident occurred.

The bus company's lawyers interviewed several bystanders who said that they had seen a man run out of the store and onto the bus. However, none of those eyewitnesses could positively identify the man as Malingerer. When the lawyers contacted Merchant, he stated that he did not remember seeing Malingerer in the store at the time of the accident, but that the store's surveillance cameras would have recorded everyone who had come and gone that day. On reviewing the videotape from the day in question, Merchant indicated that he was "pretty sure" that the disheveled figure shown jumping up from behind the magazine rack was...