Rule 2:701. Opinion Testimony by Lay Witnesses (derived from Code § 8.01-401.3(b))

LibraryA Guide to the Rules of Evidence in Virginia (Virginia CLE) (2021 Ed.)

Rule 2:701. OPINION TESTIMONY BY LAY WITNESSES (derived from Code § 8.01-401.3(B))

Opinion testimony by a lay witness is admissible if it is reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness' perceptions. Lay opinion may relate to any matter, such as—but not limited to—sanity, capacity, physical condition or disability, speed of a vehicle, the value of property, identity, causation, time, the meaning of words, similarity of objects, handwriting, visibility or the general physical situation at a particular location. However, lay witness testimony that amounts only to an opinion of law is inadmissible

NOTES

Rule 2:701 permits lay witness opinion testimony if (i) "it is reasonably based upon the personal experience or observations of the witness;" and (ii) it "will aid the trier of fact in understanding the witness' perceptions." In Harman v. Honeywell Int'l, 288 Va. 84 (2014), the court explained that the first prong of Rule 2:701 requires personal knowledge, while the second speaks to the necessity of lay opinion testimony, and the court noted that "[g]enerally, lay opinion testimony is only admitted when the witness's information for some reason cannot be adequately conveyed . . . by a detailed recital of the specific facts upon which the opinion is based . . . because the witness's impression is one that cannot by its very nature be broken down into constituent parts." Id. at 98. If the witness can conveniently relate the facts in a manner that will convey an adequate understanding of the issue, the witness's opinion based on those facts is unnecessary and therefore inadmissible. Where the trier of fact would be fully capable of listening to the specific facts and reaching its own conclusion based on those facts a lay opinion is "superfluous" and inadmissible. Id. at 99. The Rule does not authorize opinions about the thought processes of another person that are not based on the perceptions of the witness or on the witness's personal knowledge

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because such opinions are speculative. Martin v. Lahti, 295 Va. 77 (2018) (distinguishing admissible opinions on conditions like sanity or mental capacity from speculative opinions on whether another person would or would not have made a specific decision in certain described circumstances). In addition, "mere assessments of liability or its constituent findings are not admissible," and witnesses are precluded from...

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