SC Lawyer, September 2007, #3. Lay Witness Opinions.

• Author: By the Hon. D. Garrison "Gary" Hill

South Carolina Lawyer

2007.

SC Lawyer, September 2007, #3.

Lay Witness Opinions

South Carolina LawyerSeptember 2007Lay Witness OpinionsBy the Hon. D. Garrison "Gary" HillDean Wigmore believed that Anglo-American evidence law had three idiosyncratic features: the character rule, hearsay and the opinion rule. He noted that all three were unknown to European law, borne of the jury system and "[a]ll are founded on a peculiar curiousness in our law, and all have been developed with an equally peculiar rigidity and stolid disregard of practical consequences." 7 Wigmore, Evidence, § 1929 (Chadbourn Rev. 1978). In his zeal to have the opinion rule abolished, Wigmore argued that the rule sowed confusion and uncertainty, given the "utter impossibility of a consistent application." Id. The opinion rule, Wigmore bombastically concluded, "has done more than any one rule of procedure to reduce our litigation towards a state of legalized gambling." Id.

Wigmore's penchant for scholarly hyperbole is renowned and motivated Edward Bennett Williams to ask rhetorically, "What circuit does Wigmore sit on?" One legendary federal circuit judge, however, agreed with Wigmore on the opinion rule. Judge Learned Hand termed it "the most annoying rule" in the law, whose operation was "completely baffling to a witness." Wigmore and Hand were troubled by a trend in American courts that had begun in the 1800s to confine a witness' testimony to actual personal knowledge, as perceived by one of the five senses. Predictably, what resulted was a stilted examination of a (now confused) fact witness riddled by objections. Lawyers and judges became mired in metaphysical debates over what constituted "fact" rather than "opinion." The unfortunate victims of this technical irrelevance were the parties and, ultimately, the quest for truth.

In Central R.R. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926), Hand cataloged the flaws inherent in the myopic application of the rule:

The exclusion of opinion evidence has been carried beyond reason in this country, and that it would be a large advance if courts were to admit it with freedom. The line between opinion and fact is best only one of degree, and ought to depend solely upon practical considerations, as, for example, the saving of time and the mentality of the witness. It is hardly ever reversible error to admit such evidence; its foundation may generally be as conveniently left to cross-examination. Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the 'facts' in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose.

With the adoption of the Federal Rule of Evidence 701 in 1972, the federal courts retreated from their longstanding hostility towards lay opinion evidence. The rule recognizes that all statements are based, however subtly, on inferences.

South Carolina adopted Rule 701 in 1995, expanding the common law rule that lay opinions were inadmissible "only when they are superfluous in the sense that they will be of no value to the jury." State v. McClinton, 265 S.C. 171, 217 S.E.2d 584 (1975). This brought South Carolina closer to Wigmore's view and, perhaps more notably, to the view of Judge Frank Eppes, who routinely allowed borderline testimony into evidence "for what it's worth." Before McClinton, a lay opinion could not be admitted unless it was "the only method of proving certain facts." Jones v. Fuller, 19 S.C. 66 (1883); see also Green v. Sparks, 232 S.C. 414, 102 S.E.2d 435 (1958) (lay opinion not admissible where facts underlying opinion may be described to the jury in manner that jury is able to form its own opinion).

Rule 701 - Admissibility of Lay Witness Testimony

Rule 701, SCRE

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or influences is limited to those opinions or influences 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.

The federal rule is worded only slightly differently, particularly in section (c), that provides that the lay opinion must not be "based on scientific, technical or other specialized knowledge within the scope of Rule 702."

The leading South Carolina decision on Rule 701 upheld the admission of a lay witness' opinion that the defendant in a murder case chased and shot the victim because defendant believed victim had stolen or tampered with defendant's drugs. The court cited McClinton and carried the analysis further:

The terms 'fact' and...