Rule 704 OPINION ON ULTIMATE ISSUE

• Jurisdiction: Colorado

Rule 704. Opinion on Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(Federal Rule Identical.)

COMMITTEE COMMENT

The present Federal and Colorado rules may conflict with preceding Colorado case law. (Compare Bridges v. Lintz, 140 Colo. 582, 346 P.2d 571 (1959) and McNelley v. Smith, 149 Colo. 177, 368 P.2d 555 (1962).) It is felt that the rule expresses the better alternative. The conflict arises in the area of lay witnesses testifying as to an ultimate issue of fact. In Colorado, case law says that he may testify concerning things which would "help" the jury to understand the facts, but he may not render an opinion on the ultimate fact in issue. Mogote-Northeastern Consolidated Ditch Co. v. Gallegos, 70 Colo. 550, 203 P. 668 (1922). There are exceptions to the rule, and the law in Colorado can best be stated by quoting the following language: "It is reversible error to allow an opinion as to ultimate facts unless the witness testifies as an expert or his testimony invokes a description or estimate of condition, value, etc. or when it is difficult or impossible to state with sufficient exactness the facts and their surroundings." Town of Meeker v. Fairfield, 25 Colo. App. 187, 136 P. 471 (1913).

ANNOTATION

Law reviews. For article, "Rule 704: Ultimate Issues and Legal Conclusions", see 24 Colo. Law. 2175 (1995). For article, "Limits on Attorney-Expert Opinions in Jury Trials Under C.R.E. 403, 702, and 704", see 31 Colo. Law. 53 (Mar. 2002).

A lay witness is not prohibited from testifying to an issue of ultimate fact, but the question which elicits the opinion must be phrased to ask for factual, rather than legal, opinion. People v. Collins, 730 P.2d 293 (Colo. 1986).

Admissibility under this rule cannot be determined in a vacuum. Rather, considerations of relevance, helpfulness, and potential for prejudice, confusion, or waste of time must be taken into account. Hines v. D. & R.G.W. R. Co., 829 P.2d 419 (Colo. App. 1991).

Where operation of train was outside the knowledge of the ordinary person and a crucial issue in the case was the adequacy of the warning given to a pedestrian by sounding the train's whistle, expert opinions were relevant, helpful, probative, and undergirded by sufficient facts to enable the jury to make its own evaluation. Hines v. D. & R.G.W. R. Co., 829 P.2d 419 (Colo. App. 1991).

An expert may not usurp...