Rule 701. Opinion Testimony by Lay Witnesses

• Library: South Carolina Evidence Annotated (SCBar) (2023 Ed.)

Rule 701. Opinion Testimony by Lay Witnesses

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 (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.

Note:

Except for the addition of subsection (c) and minor grammatical changes, this rule is identical to the federal rule. The language of subsection (c) is based on language contained in the rules of evidence of Florida and Tennessee, and is intended to emphasize the fact that lay persons may not give expert opinions.

Subsection (a) appears to be consistent with prior law. Cf. State v. Bottoms, 260 S.C. 187, 195 S.E.2d 116 (1973)(opinion must be based upon the personal observations of the witness and not merely upon the statements of another witness).

As to subsection (b), the prior case law has held that opinion evidence is admissible as long as it is not superfluous. State v. McClinton, 265 S.C. 171, 217 S.E.2d 584 (1974). This is roughly equivalent to saying that opinion evidence must be helpful.

As to subsection (c), the Court of Appeals has stated that expert testimony is essential where the topic is not a matter within the common knowledge and experience of most lay persons. Spartanburg Regional Med. Center v. Bulsa, 308 S.C. 322, 417 S.E.2d 648 (Ct. App. 1992); Armstrong v. Union Carbide, 308 S.C. 235, 417 S.E.2d 597 (Ct. App. 1992). Subsection (c) merely states this proposition in the reverse.

Annotations Rule 701

701

Compared with FRE

"The South Carolina and federal rules on lay opinion testimony are identical in all meaningful respects." State v. Ostrowski, 435 S.C. 364, 387, 867 S.E.2d 269, 280 (Ct. App. 2021).

Drug Trade Officer Opinion

"Courts have frequently held that law enforcement officers can offer their opinion on certain aspects of the drug trade based on their personal experience or knowledge regarding the particular investigation at issue, or how those experiences and knowledge shaped their contemporaneous perceptions of what they saw while acting in the course of an investigation." State v. Ostrowski, 435 S.C. 364, 387, 867 S.E.2d 269, 281 (Ct. App. 2021).

Forensic Interviewer

"[L]ike any other fact witness, the forensic interviewer may testify to her observations. This fact-based testimony can include, despite the concerns expressed in the separate writing, the "particulars of their examinations, and their personal observations." Since the interviewer is not an expert, however, she cannot testify to "issues of delayed reporting." See In re...