Chapter 8

• Jurisdiction: New York

CHAPTER EIGHT

LAY WITNESS TESTIMONY

4

LAY WITNESS TESTIMONY § 8.0

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[8.0] I. OVERVIEW

Not every opinion requires that the witness be an expert in a particular

area. New York courts have long recognized that lay witnesses may give

opinions about matters for which their life experiences have supplied a

proper background. These include, for example, the ability to estimate the

speed at which a motor vehicle is traveling,1 the fact that a person appears

to be intoxicated2 and an individual’s age.3 Opinions on such issues as

taste, smell, another’s emotions and voice identification also have been

allowed.

New York follows common law with respect to lay opinions. A lay wit-

ness cannot state an opinion or conclusion that flows from the observed

facts if that opinion exceeds common experience. Facts and opinions often

are not readily distinguishable. For example, if a witness saw a car travel

from point A to point B, the witness ordinarily will be permitted to testify

that the car traveled the distance quickly or slowly; he or she is merely

reporting an observation as characterized by common experience. If, how-

ever, the witness were to say the car was speeding, the witness would be

drawing a conclusion based on a factual observation, and that statement

may be inadmissible as a lay opinion.

A proper foundation for lay witnesses’ testimony must be established

before they may give an opinion on an issue: they must first show first-

hand knowledge about the subject of their testimony—that is, the basis for

their opinion. Generally, witnesses would testify that they actually saw or

heard the matter about which they are about to testify. This includes, for

example, pain, the speed of a car, whether someone seems angry, happy,

nervous, frightened or drunk, and size, weight, and distance.

1 Shpritzman v. Strong, 248 A.D.2d 524, 525, 670 N.Y.S.2d 50 (2d Dep’t 1998) (“A lay witness

is ordinarily permitted to testify as to the estimated speed of an automobile based upon the prev-

alence of automobiles in our society and the frequency with which most people view them at var-

ious speeds.”).

2 Rivera v. City of New York, 253 A.D.2d 597, 600, 677 N.Y.S.2d 537 (1st Dep’t 1998) (“A lay

witness is competent to testify that a person appears to be intoxicated when such testimony is

based on personal observation and consists of a description of the person’s conduct and speech.”).

3 People v. White, 149 A.D.2d 939, 540 N.Y.S.2d 72 (4th Dep’t 1989); People v. Patterson, 149

A.D.2d 966, 540 N.Y.S.2d 626 (4th Dep’t 1989) (“A lay witness may testify to the age of a per-

son, after giving the facts and circumstances on which the opinio n is based, and after describing

as far as practicable, the appearance of the person whose age is in question.”).

§ 8.1 FOUNDATION EVIDENCE, 5TH ED.

96

Other exceptions to the lay opinion rule include the following:

• matters pertaining to the witness’s physical condition or the physical

condition of another;

• value of property or services when the witness would have personal

knowledge thereof;

• measurements such as speed, height, weight, color, quantity, time and

so on;

• handwriting, when the witness is familiar with the handwriting in

question; and

• identity.

A lay witness may testify to another’s mental condition, but only by

describing the acts and statements of the individual.

For a lay witness to be permitted to testify to such opinions, he or she

must demonstrate firsthand knowledge of the facts and a general back-

ground of life experience that establishes familiarity with the subject or

subject matter.

[8.1] II. INTRODUCTION OF CONFESSION

OR ADMISSION AFTER POLICE-

ADMINISTERED MIRANDA WARN IN GS

The issue of the voluntariness of a defendant’s statement may be liti-

gated during the trial, even if the court at a suppression hearing found that

the statement was made voluntarily and is admissible at trial. The jury’s

consideration of this issue is required only if evidence sufficient to raise a

factual dispute is adduced during the trial, either by direct or cross-exam-

ination or by evidence presented by the defendant. Therefore, the People

must offer the jury as much information as possible about the taking of

the statement to assist the jury in determining whether the statement was

voluntar y.4 Questions for eliciting this information are set forth in QS8-1.

4 People v. Cefaro, 23 N.Y.2d 283, 296 N.Y.S.2d 345 (1968); People v. Taylor, 135 A.D.2d 202,

524 N.Y.S.2d 708 (1st Dep’t), appeal denied, 71 N.Y.2d 1034, 530 N.Y.S.2d 569 (1988).