§701 Opinion Testimony by Lay Witnesses

• Library: Evidence Restated Deskbook (2021 Ed.)

§701 Opinion Testimony by Lay Witnesses

A. General rule. The testimony of a lay witness is restricted to statements of fact, rather than opinions or conclusions.

B. Exception:"Shorthand-rendition testimony." Lay opinion testimony may be admitted if:

1. the witness forms an opinion from facts personally observed; and

2. it is impossible or impracticable to place the facts before the jury in such a way that the jury may draw its own conclusion from the facts, provided that the inference:

a. is common and accords with the ordinary experiences of everyday life; or

b. relates to the cause of a particular occurrence with which the witness is especially acquainted that enables the witness to draw a more accurate inference from the facts.

C. Exception: Helpful knowledge otherwise unavailable to the jury. A lay witness may provide an opinion when (1) the lay witness possesses knowledge that is not available to the jury, and (2) it would be helpful to the jury in determining an issue in dispute.

Notes

A. General rule

Generally, the testimony of a lay witness is restricted to statements of fact—i.e., testimony resulting from one of the five senses—rather than opinions or conclusions. See:

· State v. Boyd, 706 S.W.2d 461, 465 (Mo. App. E.D. 1986)

· State v. Chamberlin, 872 S.W.2d 615, 619–20 (Mo. App. W.D. 1994)

· Grace v. Union Elec. Co., 200 S.W.2d 364, 367–70 (Mo. App. W.D. 1947)

· State v. Davidson, 242 S.W.3d 409, 413–14 (Mo. App. E.D. 2007)

· State v. Koch, 10 S.W.2d 928, 930–31 (Mo. banc 1928)

· Stone v. Mo. Dep't of Health & Senior Servs., 350 S.W.3d 14, 21 (Mo. banc 2011)

The reason for this restriction is "that inferences and conclusions of unskilled witnesses are superfluous because they can be drawn by the jury as well as by the witness and, therefore, the witness should be required to give the jury the facts and data he has observed so that they may do so." Kennedy v. Union Elec. Co. of Mo., 216 S.W.2d 756, 760–61 (Mo. banc 1948); see alsoCoday v. State, 179 S.W.3d 343, 359 (Mo. App. S.D. 2005).

Fact testimony must be based on personal knowledge

SeeState v. Boyd, 706 S.W.2d 461, 465 (Mo. App. E.D. 1986) (it was error to allow witness testimony that the defendant stabbed the victim because the witness admitted that he did not see the defendant stab the victim—"His testimony to that effect was not, therefore, a statement of fact based upon personal observation, but rather was a conclusion he drew from other observations he had made. The trial court should have restricted [the] testimony to statements of observed fact, leaving the jury to draw its own conclusion about who stabbed the victim."); see also §602 of this deskbook.

"Fact" testimony versus "opinion" testimony

It is, at times, difficult to distinguish fact testimony from opinion testimony. State v. Sanders, 842 S.W.2d 916, 919 (Mo. App. E.D. 1992).

It can well be argued that practically all so-called statements of fact are in reality the conclusions of the speaker based on the sum total of his impressions in regard to any certain object of discussion, concerning which the various and minute impressions that result in the conclusion cannot readily be communicated, in fact may not be separately recognized or realized by the witness. The practical application of the rule against conclusions is simply a matter of degree.

Brown v. Kroger Co., 358 S.W.2d 429, 433 (Mo. App. S.D. 1962).

See, e.g.:

· Property of material. State v. Mitchell, 847 S.W.2d 185, 186 (Mo. App. E.D. 1993) (no error in allowing a witness to testify that the door of a burglarized pharmacy "was made of plexiglass, a material that would resist breaking" on impact; "[i]nstead [it] would expand and regain its shape once there was a hole in it"—the witness was testifying to facts known from personal observation (seeing the defendant dive through the hole) and not scientific properties).

2.Held against will. State v. Sanders, 842 S.W.2d 916, 919 (Mo. App. E.D. 1992) (no error in allowing a witness to state that the defendant held the victim "against her will" because the witness was merely testifying to facts within his personal knowledge, such as what was said and observed).

3.A person's name. State v. Wallingford, 43 S.W.3d 852, 855 (Mo. App. W.D. 2001) (testimony of a person's name is not considered a conclusion, nor is it within the rule excluding hearsay evidence).

4. Age.State v. Chamberlin, 872 S.W.2d 615, 619–20 (Mo. App. W.D. 1994) (a person may testify as to that person's age, even though the person cannot personally remember the events surrounding the birth; likewise, a family member of a person may generally testify as to the age of that person because "within the family, discussions concerning the birth date and age of the person are sincere, common, and of sufficient interest that there is a high probability of accuracy").

B. Exception: "Short-hand rendition" testimony

When it is reasonably practical to do so, the fact-finder should be presented with facts, not opinions or conclusions, and reach conclusions based on those facts. State v. Brown, 683 S.W.2d 316 (Mo. App. S.D. 1984) (no error in excluding testimony of a defense lay witness that there was another person who looked exactly like defendant because that person was available and could have been presented to the jury on the question of whether the identifying witnesses could have been mistaken); State v. Thomas, 536 S.W.2d 529, 531–33 (Mo. App. E.D. 1976) (opinion that "the struggle was over" before the defendant shot the victim should not have been received when the matter was crucial to the issue of self-defense because the witness was capable of accurately describing the facts and had done so).

But lay opinion testimony may be admitted as "shorthand-rendition testimony" if:

· the witness forms an opinion from facts personally observed; and

· it is impossible or impracticable to place the facts before the jury in such a way that the jury may draw its own conclusion from the facts; see Shockley v. State, 147 S.W.3d 189, 194 (Mo. App. S.D. 2004) (quoting Brown, 683 S.W.2d at 317–18); see also:

- State v. Langford, 455 S.W.3d 73, 76–77 (Mo. App. S.D. 2014);

- State v. Davidson, 242 S.W.3d 409, 413–15 (Mo. App. E.D. 2007);

- Sullivan v. Union Elec. Light & Power Co., 56 S.W.2d 97, 104 (Mo. 1932);

- Kirchof v. United Rys. Co. of St. Louis, 135 S.W. 98, 101–02 (Mo. App. E.D. 1911); and

- Brawley v. Esterly, 267 S.W.2d 655, 661–62 (Mo. 1954);

provided that the inference:

· is common and accords with the ordinary experiences of everyday life, Davidson, 242 S.W.3d at 413–15; Meyers v. Morrison, 822 S.W.2d 906, 909 (Mo. App. E.D. 1991); State v. Morrow, 541 S.W.2d 738, 742 (Mo. App. E.D. 1976); State v. Battle, 415 S.W.3d 783, 788 (Mo. App. E.D. 2013); or

· relates to the cause of a particular occurrence with which the witness is especially acquainted that enables the witness to draw a more accurate inference from the facts, Kennedy v. Union Elec. Co. of Mo., 216 S.W.2d 756, 761 (Mo. banc 1948); Owen v. Chicago, R.I.&P. Ry. Co., 83 S.W. 92, 93 (Mo. App. W.D. 1904).

In effect, the witness is being permitted to testify to the witness's "matter of fact" comprehension of what the witness has "seen in a descriptive manner which is actually a conclusion, opinion or inference." State v. Gray, 731 S.W.2d 275, 285 (Mo. App. W.D. 1987) (quoting Morrow, 541 S.W.2d at 742).

The short-hand rendition exception is justified by convenience and necessity. Convenient because it is a "short-hand rendition" of a composite situation. Necessary because, if the witness was confined to a statement of facts in the ordinary sense, the evidence would be simply lost to the trier of fact because of the impossibility or impracticability of doing so. Gray, 731 S.W.2d at 285.

It is also justified as being of greater aid to the jury because the matter may be "more clearly conveyed to the jury that way than if the witness were obliged to use verbiage meticulously describing the...