Opinion

• Author: Gordon P. Cleary
• Pages: 197-248

4-197

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 4-198

§400In General

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.

§410Lay Witness

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.

137, 119 S. Ct. 1167 (1999). See also, §420.

4-199 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