Rule 701 Opinion Testimony by Lay Witnesses

• Jurisdiction: Arizona

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

Introductory Note: Problems of Opinion Testimony

The rules in this article are designed to avoid unnecessary restrictions concerning the admissibility of opinion evidence; however, as this note makes clear, an adverse attorney may, by timely objection, invoke the court's power to require that before admission of an opinion there be a showing of the traditional evidentiary prerequisites. Generally, it is not intended that evidence which would have been inadmissible under pre-existing law should now become admissible.

A major objective of these rules is to eliminate or sharply reduce the use of hypothetical questions. With these rules, hypothetical questions should seldom be needed and the court will be expected to exercise its discretion to curtail the use of hypothetical questions as inappropriate and premature jury summations. Ordinarily, a qualified expert witness can be asked whether the witness has an opinion on a particular subject and then what that opinion is. If an objection is made and the court determines that the witness should disclose the underlying facts or data before giving the opinion, the witness should identify the facts or data necessary to the opinion.

In jury trials, if there is an objection and if the facts or data upon which opinions are to be based have not been admitted in evidence at the time the opinion is offered, the court may admit the opinion subject to later admission of the underlying facts or data; however, the court will be expected to exercise its discretion so as to prevent the admission of such opinions if there is any serious question concerning the admissibility, under Rule 703 or otherwise, of the underlying facts or data.

Comment

The common law frequently excluded lay witness opinion testimony because, in theory, the triers-of-fact had the same information as the witness. This rule expressly permits lay witness opinion testimony under the following two conditions: the opinion must be based on the witness's firsthand knowledge or observation;[1] and the opinion will be helpful to understanding the testimony or determining a fact in issue.[2]

Cases

701.010 Whether a lay witness is qualified to offer opinion is a preliminary determination for the trial court under Rule 104(a); this decision must be upheld unless shown to be clearly erroneous or an abuse of discretion.

Lewis v. N.J. Riebe Enter., Inc., 170 Ariz. 384, 825 P.2d 5 (1992) (because plaintiff had 8 years' experience and testified that he was familiar with job market in area, and because jurors had to determine amount of plaintiff's lost wages, trial court did not abuse its discretion in ruling that plaintiff could give an opinion under Rule 701).

Groener v. Briehl, 135 Ariz. 395, 661 P.2d 659 (Ct. App. 1983) (decision of trial court to admit lay witness's opinion that accident was unavoidable was clearly erroneous because witness did not have firsthand knowledge of speed and distance of automobile, and because opinion that accident was unavoidable was just another way of saying that defendant was not negligent, which amounts to advising jurors how to decide case, and was therefore not helpful to an understanding of facts; court reversed judgment in favor of defendant and remanded for new trial).

701.020 The opinion must be rationally based on the witness's own perceptions.

State v. Hughes, 193 Ariz. 72, 969 P.2d 1184, ¶ 47 (1998) (to be competent to offer opinion on person's sanity, lay witness must have had opportunity to observe past conduct and history of person; because state's witnesses only saw defendant after arrest and thus not over long period of time, these witnesses were not competent to give opinion on defendant's sanity).

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996) (detective's testimony that victim's shorts and belt buckle made grooves in sand and vegetation in victim's hand appeared to have come from plant 12 inches away was based on...