Opinion
Author | Gordon P. Cleary |
Pages | 203-256 |
4-1
4. OPINION
Lay & Expert
§400 In General
§410 Lay Witness
§411 Collective Fact Opinion
§412 Skilled Lay Observer Testimony
§420 Experts
§421 Medical Experts
§422 Economic Experts
§423 Forensic Experts
§423.1 Technical Experts
§424 The Daubert Standard
§424.1 Daubert on Remand
§424.2 Daubert and Non-Scientific Evidence
§424.3 Standard of Review on Daubert Rulings
§424.4 Daubert and Kumho Tire
§424.5 Daubert/Kumho Tire Motions Under Rule 702 Amendments
§425 Eyewitness Identification
§426 Battered Woman Syndrome
§427 Battered Child Syndrome
§428 Rape Trauma Syndrome
§430 Practice Pointers
§400 OPINION 4-2
InGeneral
In most jurisdictions and under the Federal Rules,
both lay witnesses and expert witnesses are allowed to
render opinions. These opinions can range from a lay
witness’ opinion as to the character of truthfulness of
another witness to opinions on the ultimate issue in a
case rendered by experts. Before any opinion can be
received into evidence, however, a proper foundation
must be laid for its admission. The following sections
detail the foundational elements for lay witness opin-
ions and expert witness opinions, respectively.
LayWitness
At common law, only expert witnesses were
allowed to express opinions. A lay witness was barred
from giving his opinion; rather, he was limited to tes-
tifying about things he perceived.
The common law eventually evolved. Many juris-
dictions, as well as the Federal Rules of Evidence, now
allow for lay witness opinion testimony in certain cir-
cumstances. Generally, all that need be shown to have
a lay witness express an opinion is that the opinion is
(a) rationally based on the perception of the witness and
(b) helpful to either a clear understanding of his testi-
mony or the determination of a fact which is in issue.
A witness providing the lay opinion usually gives
the jury a rather ordinary inference instead of recount-
ing a series of perceptions which would add up to the
inference. For example, the witness might testify that
a woman seemed sad rather than testify about her
facial expressions, body posture, tears, and so on.
The lay witness is still precluded from rendering an
opinion beyond the realm of common experience.
Those opinions are left to experts. Furthermore, the lay
witness may not give an opinion on a matter of law.
What constitutes expert testimony, or an opinion
on a matter of law, is a legal determination which is to
be made by the judge. The weight which is to be given
to the lay opinion, however, rests with the trier of fact.
The December 2000 amendments to Rule 701
make it clear where the line between opinions that may
be rendered by lay persons and those that may be ren-
dered solely by experts is drawn. The amendment also
is designed to prevent circumvention of any pretrial
disclosure requirements relating to expert witnesses.
See Fed.R.Civ.P. 26(a)(2). Subdivision (A) of that rule
requires the disclosure of “the identity of any person
who may be used at trial to present evidence under Rule
702, 703 or 705 of the Federal Rules of Evidence.”
Subdivision (B) of that rule also requires that a
detailed written report be submitted from every “wit-
ness who is retained or specially employed to provide
expert testimony in the case or whose duties as an
employee of the party regularly involved giving expert
testimony.” Accordingly, every witness who will offer
expert testimony is subject to Rule 26 disclosure.
Prior to the amendments to Rule 701, however,
the question was raised as to whether a lay witness
with particular expertise could testify under Rule 701
to what was essentially expert testimony while at the
same time avoiding the disclosure requirements of
Rule 26(a)(2). The amendment to Rule 701 ends this
confusion by making clear that if a witness is offering
expert testimony, the admissibility of the evidence
will be reviewed under Rule 702 even if the witness is
named as a so-called “lay witness” as opposed to an
“expert witness.” The amended language of the rule
now states as follows:
If a witness is not testifying as an expert, testimony
in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other special-
ized knowledge within the scope ofRule 702.
Accordingly, under the amendment:
• The test will be the subject matter of the testi-
mony — i.e., if the testimony conveys “scien-
tific, technical or other specialized knowl-
edge,” then the testimony will be judged under
Rule 702, not 701;
• When judged under 702 (as opposed to 701),
the Fed.R.Civ.P. 26(a)(2) disclosure require-
ments must be met; and
• The reliability requirements of Rule 702 also
apply.
See amendments to Rule 702 codifying Daubert
v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) and Kumho Tire Co. v. Carmichael, 526 U.S.
4-3 LAY AND EXPERT §410
Elements
The following foundational requirements are
proper in most jurisdictions, as well as under the Fed-
eral Rules of Evidence, when you are attempting to
elicit opinion from a lay witness.
• The testimony is based on the witness’ per-
ception.
• The testimony is helpful to the trier of fact
(judge or jury) in either:
— understanding the witness’ testimony, or
— determining an issue of fact in the case.
• The witness has an opinion.
• The witness is in a position to testify regarding
that opinion.
• The witness’ opinion is the best way (or a help-
ful way) for the trier of fact (judge or jury):
— to understand the witness’ testimony, or
— to understand an issue in the case (i.e., the
facts cannot be described in sufficient
detail to convey to the jury the substance
of testimony without the use of opinions or
conclusions).
• The witness is rendering an opinion within the
realm of common experience.
• The witness is not offering an opinion based
on scientific, technical or other specialized
knowledge within the scope of Rule 702.
• The witness is not giving an opinion on a mat-
ter of law. See FED.R.EVID 701.
The common law provides a more restrictive test
for when an opinion may be rendered by a lay witness.
Under the common law, the following foundation must
be laid before a lay witness may render an opinion:
• The testimony is based on the witness’ per-
ception.
• The testimony is necessary to the judge or
jury in either:
— understanding the witness’ testimony, or
— determining an issue of fact in the case.
• The witness has an opinion.
• The witness is in a position to testify regard-
ing that opinion.
• The witness’ opinion is the only way for the
judge or jury to understand either the wit-
ness’ testimony or an issue in the case.
• The witness is rendering an opinion within
the realm of common experience.
• The witness is not rendering an opinion on a
matter of law or on an ultimate issue in the case.
Tactics
Whenever you attempt to use lay witness opin-
ion testimony, there will be objections. It is within
the court’s discretion to admit opinion testimony
from a lay witness. That discretion will not be dis-
turbed unless the judge was clearly erroneous.
If you seek admission of the lay witness opinion,
stress that the foundation requirements have been met:
• The testimony is based on the witness’ per-
ception.
• The testimony is helpful to the judge and jury.
• The opinion is the best way for the witness to
testify.
• The opinion is not merely gratuitous.
• The opinion is within the realm of the lay
witness’ common experience.
• The opinion is not one based on scientific, tech-
nical or other specialized knowledge that would
come within the scope of Rule 702.
Basically, all you need to show is that the testimo-
ny will be helpful to the trier of fact. If, however, you
are in a common law jurisdiction, you must show that
the testimony is necessary to enable the trier of fact to
understand the witness’ testimony or to determine an
issue of fact in the case.
If you oppose lay witness testimony, argue the
following:
• A proper foundation has not been laid. (e.g.,
one of the Elements listed above is missing.)
• The court should use its discretion to disallow
the opinion testimony because it will improp-
erly influence the jury or its probative value is
outweighed by its prejudice, likelihood of
confusion, and cumulative nature. See FED-
.R.EVID 403.
• This is truly giving an opinion outside the
realm of common knowledge and the witness’
opinion is, in fact, based on scientific, techni-
cal or other specialized knowledge that is
within the scope of Rule 702.
NOTE: Here, if the witness would be qualified
to give an opinion that is based on scientific,
technical or other specialized knowledge within
the scope of Rule 702, then that witness also
must be subject to the disclosure requirements
of Fed.R.Civ.P. 26(a)(2), as that rule requires
pretrial disclosure of “the identity of any person
who may be used at trial to present evidence
under Rule 702, 703, or 705 of the Federal
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