Opinion Testimony: Lay, Expert, or Something Else? - June 2008 - Criminal Law

• Publication year: 2008
• Pages: 33
• Citation: Vol. 37 No. 6 Pg. 33

37 Colo.Law. 33 Colorado Lawyer 2008.

2008, June, Pg. 33. Opinion Testimony: Lay, Expert, or Something Else? - June 2008 - Criminal Law

The Colorado Lawyer
June 2008
Vol. 37, No. 6 [Page 33]

Articles
Criminal Law
Opinion Testimony: Lay, Expert, or Something Else?
by H. Patrick Furman

Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law; legislation; and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.

Article Editor

Morris Hoffman, judge for the Second Judicial District Court, Denver

About the Author

H. Patrick Furman, Boulder, is Clinical Professor of Law at the University of Colorado Law School - (303) 492-2638 furman@colorado.edu.

This article discusses the current state of mediation. Much of the content of this article was presented at the Colorado Bar Association First Annual Statewide Alternative Dispute Resolution Conference held in Denver on September 28, 2007.

The dividing line between traditional experts and lay people is easy to draw analytically, but sometimes difficult to administer in practice. There are at least two reasons for this. First, regardless of whether a witness is an expert or a lay person, it often is difficult to separate "fact" from "opinion" and to separate "opinion" from "speculation." The commentary following Federal Rule of Evidence (F.R.E.) 701 notes that witnesses "often find difficulty in expressing themselves in language which is not that of an opinion or conclusion." Second, the growing number of witnesses who have special education, training, and/or experience, but who are not "experts" in the traditional sense, creates difficulty in administering the rule. This problem manifests itself most frequently in the testimony of police officers who have specialized training in an area - for example, roadside sobriety testing and driving under the influence (DUI) detection and accident reconstructions - but are not traditionally thought of as experts

It is important to place witnesses on one side or the other of the lay/expert divide. Discovery and disclosure rules in criminal cases are different when it comes to expert witnesses, and require counsel to inform opposing counsel of an intention to call expert witnesses, as well as to provide certain data used by such an expert.(fn1) The advocacy techniques to qualify an expert witness and elicit his or her testimony also are different. Finally, the broad discretion typically granted to trial courts in ruling on the admissibility of opinion testimony reduces the likelihood of reversal on appeal, and increases the need to persuade the trial judge to rule in the client's favor

This article begins with a brief review of basic considerations relating to lay opinion testimony: traditionally admissible lay opinions, the relevancy requirement, the ban on speculation, the foundation requirements, the "ultimate issue" issue, and some advocacy considerations. The article then focuses on the dividing line between lay and opinion testimony.

A Brief Review of Lay Opinion Testimony

Lay opinion testimony is governed by Rule 701,(fn2) which reads:

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 a clear understanding of the witness's testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

The witness's testimony must be in the form of "opinions or inferences." Speculation is objectionable. There are a few cases addressing the distinction between fact and opinion, but case law on the distinction between lay opinion and lay speculation is almost nonexistent. The cases generally just re-state the rule that opinion is permissible, but speculation without an adequate factual basis is not.

In a proper case, a competent observer may be permitted to state her estimate or opinion as to the age of another, and the estimate will be rejected as without legally sufficient probative value only if it is "surmise, speculation, conjecture or guesswork."(fn3)

Even when the topic is one that normally is within the purview of lay opinion, there must be an adequate foundation. "[W]hen no sufficient facts are shown upon which to base an opinion of the speed of the vehicle, the opinion is mere conjecture and speculation."(fn4)

The witness's testimony must be "helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." State v. Brown(fn5) has been cited by a number of courts for its discussion of the relevancy requirement of Rule 701. After noting the general principle that nonexpert witnesses generally are confined to testifying about facts and are precluded from offering opinions, the court noted: "[a]n exception to this general rule exists where testimony in an opinion form describes the witness's observations in the only way in which they can be clearly described."(fn6) The examples given in Brown were "that a footprint in snow looked like someone had slipped . . . or that a substance appeared to be blood."(fn7) Brown itself allowed testimony from a lay witness that a particular burn looked like it had been made by a cigarette.

The witness's testimony must be "rationally based on the perception of the witness." Experts may rely on facts made known to them in a variety of ways; lay witnesses may opine on topics as to which they have some direct knowledge. Opinion testimony by lay witnesses must be "predicated upon concrete facts within their own observation and recollection - that is, facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts."(fn8) The Colorado Supreme Court held that, "for an opinion of a lay witness to be `rationally based on the perception of the witness,' it must be based on personal knowledge."(fn9) Accordingly, it held that a review of two police reports did not form an adequate foundation to permit a witness to testify about the person who was the subject of those reports.

Finally, a lay witness's opinion may not be "based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Before addressing this distinction in detail, it may be helpful to remember that many types of lay opinions have long been deemed admissible.

A lay opinion that a person is under the influence of alcohol has been deemed admissible since well before the adoption of the Federal and Colorado Rules of Evidence.(fn10) Lay testimony about drugs has been treated like lay testimony about alcohol, with a finding that such testimony does not require any specialized training or knowledge, at least as long as the testifying witness has some familiarity with drugs.(fn11) Other lay opinions that have been deemed admissible without much discussion of whether they actually might be expert opinions include those relating to

the speed of a car(fn12)

a defendant's sanity(fn13)

a...