Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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A. Lay Opinions (754)

Commonwealth v. Holden, 390 Pa. 221, 134 A.2d 868 (1957) (756)

This case raises the issue of when is an observation a conclusion. What is a "wink"? How can a person describe a "wink" other than as a "wink". In this case the characterization of the defendant's behavior as a wink lent the behavior meaning that bore directly on guilt. Should a witness be permitted to make such a characterization, or should this function be reserved to the jury?

The Federal Rules (FRE 701) take a pragmatic approach to the "opinion rule". Characterizations which are everyday descriptions of the facts will usually be permitted. Characterizations which attempt to draw specific conclusions are likely to be viewed with more suspicion.

Problem - Mrs. Jones's Baby (758)

The point:

The lay opinion rule is a rule of preference for detail for in-court testimony. It is a tool for forcing a witness to break down his ambiguous conclusions into more specific descriptions.

Answer and analysis:

If the case turns in any way on the identity of the baby that Mrs. Jones was holding, then W's statement is objectionable. Mrs. Jones was so far away that W could not have recognized the baby she was carrying. He evidently drew a conclusion that the baby was Mrs. Jones' baby because Mrs. Jones was carrying it. He should testify to the fact that he saw Mrs. Jones carrying a baby rather than to his conclusion about the identity of the baby.

The basic strategy of FRE 701 is to require witnesses to speak at the level of detail best calculated to communicate with the factfinder. W could testify more carefully without being inhibited in his ability to communicate, and the jury could make (or not make) the conclusion that W made just as validly as W. In this sense, FRE 701 functions as a preference rule.

If W is unavailable, the statement would be admissible. Even though it would be preferable to have more specific testimony, the conclusory statement could be helpful to the factfinder. Given the option of admission or complete exclusion, admission is preferable. The ambiguity of the statement can be brought out on cross-examination (FRE 906) or argument.

Problem - Presidential Debate (758)

The point:

Any supposed bright-line distinction between "facts" and "opinions" is ephemeral. The better approach is to treat these words as functional concepts which should be interpreted so as to maximize effective communication between the witness and the jury.

Answer and analysis:

All statements made by the candidates could be reported with no question of violating FRE 701. Beyond the statements of the candidates, however, reporting what happened would involve characterization: assessments of the candidates' confidence, authority, composure, sense of humor, sharpness politeness, friendliness, etc. Some of these qualities might be capable of being communicated without characterization, e.g., "beads of sweat appeared on Nixon's upper lip and forehead. " With this kind of reporting, however, the intended meaning of the observation is often unclear unless accompanied by a more general characterization for which the specific observation is offered as supporting evidence. FRE 701 would permit a great deal of characterization in this situation. It is a functional rule the objective of which is to allow a witness to communicate fully what he perceived, while at the same time and in pursuit of the same objective, preventing a witness from testifying at a level of generality which allows the witness to leave out details that he could perfectly well include and on which his generalization is based. Thus a report that "Kennedy won" would be impermissible, at least if unaccompanied by more detailed observations on which the witness based this "opinion."

Problem - Murder at the Hotel Thoreau (758)

The point:

The exclusion of opinion evidence operates as a rule of preference; once the expression of the preference has brought forth the more detailed information there may be no further occasion to apply the rule.

Answer and analysis:

(1) W's description of I's expression as one of ineffable sadness is the best that W could be expected to do. He would not communicate more or better by attempting to speak at a more specific level of detail. [The judge -or somebody -- might ask W what "ineffable" meansl]

By contrast, W shows that he is able to describe I's conduct with greater specificity and communicative content than his initial characterization that I acted disoriented. However, having sustained the objection to the characterization and thus provoked the more specific description, it would be proper for counsel to ask his original question again, and proper also for the judge now to overrule an objection to the characterization. Describing I's conduct as "disoriented" adds something helpful to the description of the specifics.

(2) Objection sustained. The witness's estimate of how long the person had been dead deals with an inference based on the appearance of the body that a lay witness would not have the experience and training to make. In terms of the wording of FRE 701, the inference would not be considered "rationally based on the perception of the witness" unless the witness had the expertise to make it rational. In that event the testimony would be admitted under FRE 702.



United States v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir. 1997) (759)

This case raises the question of how far a lay witness may go under FRE 701. May an experienced lay witness (law enforcement agent) characterize a suspect's actions as "indicative of an experienced narcotics dealer"? Is this the kind of lay description that is helpful to a jury? Should law enforcement agents be permitted to describe the defendant's conduct in criminal terms? The 9th Circuit ruled that the government law enforcement witnesses had gone too far in this case, noting however that characterizing a person's actions as "acting as a lookout" and similar loaded descriptions had been found acceptable in other cases.

Inventive use of Rule 701 by the Government and others led to amendment of the rule to make it clear that any descriptive conclusions must be of the kind that are NOT based on specialized knowledge "within the scope of Rule 702". The intent of the amendment was to curb the kind of testimony found objectionable in Figueroa-Lopez.



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