Chapter 7 701 Opinion Testimony by Lay Witness

• Library: Evidence Guide 2003

§701 Opinion testimony by lay witness

§702 Testimony by expert

§703 Bases of opinion testimony by expert

§704 Opinion on ultimate issue

§705 Disclosure of facts or data underlying expert opinion

§706 Court-appointed expert

§701 Opinion Testimony by Lay Witness

If the witness is not testifying as an expert, testimony in the form of opinions or inferences is limited to those opinions or inferences that are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony.

Notes

Generally the testimony of witnesses is limited to facts, as opposed to conclusions. 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). But see Schumann v. Mo. Highway & Transp. Comm’n, 912 S.W.2d 548, 555–57 (Mo. App. W.D. 1995); State v. Mitchell, 847 S.W.2d 185, 186 (Mo. App. E.D. 1993). But by statute, testimony of a witness “respecting” a “[c]omparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted.” Section 490.640, RSMo 2000.

Lay opinion on value of property

Illustrative of instances of acceptance of opinions by an owner as to the value of real or personal property is St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., 589 S.W.2d 260, 269 (Mo. banc 1979); see also State v. Reilly, 674 S.W.2d 530, 533 (Mo. banc 1984). But see S. Mo. Dist. Council of Assemblies of God v. Hendricks, 807 S.W.2d 141, 148 (Mo. App. S.D. 1991).

Lay opinion of soundness of mind or capacity to
transact business

Missouri decisions also allow the witness to state a conclusion on the issue of soundness of mind if based on facts related by the witness and inconsistent with sanity. See Lee v. Ullery, 140 S.W.2d 5, 9–12 (Mo. 1940); Lewis v. McCullough, 413 S.W.2d 499, 503–04 (Mo. 1967). But lay opinion must have been formed before trial and at the time the witness observed the subject’s conduct. State v. Shipman, 568 S.W.2d 947, 951–52 (Mo. App. S.D. 1978). Opinions as to competency to transact business have been held admissible. Pike v. Pike, 609 S.W.2d 397, 403 (Mo. banc 1980). But see Wilhoit v. Fite, 341 S.W.2d 806, 817 (Mo. 1960).

“Shorthand/descriptive facts” opinion

Generally, witnesses must state facts from which the jurors are to form their opinion, but when a witness has personally observed events, he may testify to his “matter of fact” comprehension of what he has seen in a descriptive manner which is actually a conclusion, opinion or inference, if the inference is common and accords with the ordinary experiences of everyday life.

Myers v. Morrison, 822 S.W.2d 906, 909 (Mo. App. E.D. 1991) (quoting Travelers Indem. Co. v. Woods, 663 S.W.2d 392, 399 (Mo. App. S.D. 1983)).Opinions are admissible “from persons who have no special skill but have personally observed the matter in issue, and cannot adequately state or recite the data so fully and accurately as to put the jury completely in the witness’ place and enable them equally well to draw the inference.” Scanlon v. Kansas City, 28 S.W.2d 84, 95 (Mo. banc 1930) (quoting I Simon Greenleaf, Greenleaf on Evidence, pp. 549–50 (16^th ed. 1899)); see also Brown v. Kroger Co., 358 S.W.2d 429, 433 (Mo. App. S.D. 1962); State ex rel. Nixon v. Telco Directory Publ’g, 863 S.W.2d 596, 599 (Mo. banc 1993); State v. Hill, 812 S.W.2d 204, 208–09 (Mo. App. W.D. 1991). But see 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 where the matter was crucial to the issue of self-defense because the witness was capable of accurately describing the facts and had done so).

The test of whether the witness should be capable of testifying to the underlying facts has been stated to be whether a witness “of ordinary intelligence” could do so as distinguished from the capabilities of the testifying witness. Heinbach v. Heinbach, 202 S.W. 1123, 1127 (Mo. 1918).

§702 Testimony by Expert

(a) Scientific, technical, or other specialized knowledge

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject by knowledge, skill, experience, training, or education may testify thereto.

(b) Opinion on a fact issue

1. Civil cases

If the opinion of a witness qualified as an expert by knowledge, skill, experience, training, or education will assist the trier of fact to understand the evidence or to determine a fact in issue, the expert may testify in the form of an opinion. Section 490.065.1, RSMo 2000.

2. Criminal cases

If the opinion of a witness qualified as an expert by knowledge, skill, experience, training, or education is necessary for the trier of fact to draw correct conclusions as to a fact in issue, the expert may testify in the form of an opinion.

Notes

The issue of qualification of the expert witness is a matter within the discretion of the trial court. State v. Stevens, 467 S.W.2d 10, 23 (Mo. 1971); Wild v. Pitcairn, 149 S.W.2d 800, 804 (Mo. 1941). An expert need not hold academic certification but rather may be qualified by “study, observation or practical experience.” State v. Foster, 197 S.W.2d 313, 325 (Mo. 1946); see Guiley v. Lowe, 314 S.W.2d 232, 239 (Mo. 1958). The formality of holding a professional license is not required. Eichelberger v. Barnes Hosp., 655 S.W.2d 699, 704 (Mo. App. E.D. 1983). But medical subprofessionals may be limited to expressing opinions on matters “within the limited and precise range of their medical specialties.” Wingate v. Lester E. Cox Med. Ctr., 853 S.W.2d 912, 918 (Mo. banc 1993). As to most subjects and notably as to medical experts, the witness may testify on a subject generally “inherent in the teachings of his school.” Guiley, 314 S.W.2d at 239; see also Bynote v. Nat’l Super Mkts., Inc., 891 S.W.2d 117, 125–26 (Mo. banc 1995); State v. Knese, 985 S.W.2d 759, 768–69 (Mo. banc 1999. But land value experts have been more narrowly confined to issues peculiar to their experience and background. Shelby County R-IV Sch. Dist. v. Herman, 392 S.W.2d 609, 616 (Mo. 1965).

The issue of whether the testimony is a proper subject matter for expert testimony is also within the discretion of the trial court. State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984); Eickmann v. St. Louis Pub. Serv. Co., 253 S.W.2d 122, 130 (Mo. 1952). The rule of according discretion to the trial court on those issues has not been changed by § 490.065.1, RSMo 2000, governing admissibility of expert testimony in civil cases. See Ryan v. Parker, 812 S.W.2d 190, 194 (Mo. App...