Chapter 4 - § 4.3 • LAY OPINION

• Jurisdiction: Colorado

§ 4.3 • LAY OPINION

§ 4.3.1—Introduction

Testimony by lay witnesses is generally admissible so long as the witness has personal knowledge of the subject of the testimony. See CRE 602. This standard is very lax, and will not ordinarily prevent a witness from testifying. "Thus, as long as there is evidence before the trial court that the jury, as the trier of fact, could reasonably find that the witness has personal knowledge of the event to which the witness is about to testify, the witness should be permitted to testify, and the questions of credibility and weight should be left for the jury to resolve." Burlington N. R. Co. v. Hood, 802 P.2d 458, 469 (Colo. 1990). The personal knowledge requirement does not need to be based on the witness's testimony — it "may be inferable from sources other than the witness . . . and from the total circumstances surrounding the matter that is the subject of the witness's testimony." Id.; see also Murray v. Just in Case Business Lighthouse, LLC, 374 P.3d 443, 453-55 (Colo. 2016).

Opinion testimony by lay witnesses is generally prohibited. CRE 701. However, such testimony is permitted if it is rationally based on the perception of the witness, helpful to a clear understanding of the witness's testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge. Id.; People v. Stewart, 55 P.3d 107 (Colo. 2002).

§ 4.3.2—Foundation Requirements for Lay Opinion Testimony

The following are the elements of the foundation for lay opinion testimony:

• Demonstrating that the witness has personal knowledge of the foundation facts — e.g., that the witness was in a position to hear, see, and observe the event; and
• Demonstrating that any opinion is:

- rationally based on the perception of the witness;
- helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and
- not based on scientific, technical, or other specialized knowledge.

§ 4.3.3—Sample Examinations Demonstrating the Use of Lay Opinion Testimony

The following exercise demonstrates the use of a lay witness to elicit opinions on speed and distance.

ATTORNEY: What is your name?

WITNESS: Ralph Bazergian.

ATTORNEY: Where do you live?

WITNESS: Westminster, Colorado.

ATTORNEY: What is your occupation?

WITNESS: Accountant.

ATTORNEY: Now, directing your attention to September 15, 2009, did you witness an accident?

WITNESS: Yes.

ATTORNEY: Where?

WITNESS: At the intersection of

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