23 - Lay Witnesses 602, 701

Question 1

First hand knowledge rule (602)

Answer 1

• W must have PK of the events they’re testifying. (includes all senses)
• Uncertainty - “I think” “i believe” “Im not positive” - NOT grounds for exclusion as long as the W had an opportunity of personal observation and did get some impressions from this observation
• Proof of First hand knowledge - W’s own testimony (can be inferred from T)
• Prima facie standard - judge not decide whether or not W has firsthand knwolege by a preponderance of evidence (usual standard), only if sufficient evidnece to support a finding of 1st HK has been introduced. If yes - W can test and jury decides if they had 1HK

Question 2

First hand knowledge rule (602) and hearsay

Answer 2

NO

• W cant test that they heard that the D commited robbery from another person, 602 and hearsay are violated
• objection for lack of personal konwledge if W not present at scene
• oject for hearsay if that basis for the test is the declar’s statement

YES

• ex. if decl is the accused and W heard robber say “I robbed the bank” - admission of party-opponent and exempted from hearsay rule.
• Although W has no PK of the robbery, they do have PK that statement was made

Question 3

Opinion rule (701)

Answer 3

• rule of preference as to the form of testimony not exclusion - primary sensory impressions are preferred over opinions, conclusions, or inferences drawn from those impressions
• Exclusion is only the means used to bring forth more concrete testimony when it is possible to do so. Hence, if an objection is sustained, counsel can rephrase the question, asking for more specific information.

Case types - wide-range of subjects, including lay opinion testimony on a person’s mental condition (insanity),36 the identification of persons in bank surveillance videotapes,37 the description of a person’s movements as “suspicious,”38 the identity of drugs,39 intoxication,40 age,41 as well as numerous other types of opinions.42 Witnesses may also testify to their impressions.43

limits - if “attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule.”44 For example, an opinion as to fault in a tort case should be excluded on this basis.

Question 4

Opinion rule (701) requirements -

Answer 4

the opinion of a nonexpert IS admissible if

(1) rationally based on a witness’s perception - The requirement that the opinion be rationally based on perception, at the very least, embodies the firsthand knowledge rule
(2) helpful to a clear understanding of the witness’s testimony or to the determination of a fact in issue
(3) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702, which governs expert testimony

Question 5

Opinion rule (701) - Helpfulness

Answer 5

Trial court considers -

1. The ability of the witness to express herself (the more articulate the witness, the less need for an opinion — i.e., whether the “jury could not be put in possession of all the facts necessary to its decision.”
2. the importance of the issue to which the opinion relates; the more crucial the issue, the more important it is for the witness to supply, if possible, the underlying facts.
3. W’s use of common terms that also have a specific legal meaning, such as “rape” and “insanity,” should be explained.35

Question 6

lay and expert opinion overlap (701(C))

Answer 6

• specifies that the witness’s opinion must not be based on scientific, technical, or other specialized knowledge within the scope of Rule 702, which governs expert testimony

Dual functions - First, a witness may testify as both a fact witness and an expert — e.g., a treating physician. The Federal Rules do “not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Certainly, it is possible for the same witness to provide both lay and expert testimony in a single case.”46

Different basis - Second, in some cases, there may be a permissible overlap between lay and expert testimony. For example, both lay witnesses and experts are permitted to give opinions about handwriting comparisons. Rule 901(b)(2) provides that nonexpert opinion testimony as to the genuineness of handwriting is sufficient to authenticate a document.47 Similarly, both kinds of witnesses may testify on mental condition in an insanity defense case. A lay witness could testify that the defendant’s behavior appeared erratic, confused, different, and so forth. The lay witness would not be qualified to state a medical opinion, nor discuss the legal term “insanity.”

Main difference - “The lay witness is using his opinion as a composite expression of his observations otherwise difficult to state, whereas the expert is expressing his scientific knowledge through his opinions.”

Question 7

Application to out of court statements

Answer 7

• opinion rule should rarely be applied to extrajudicial statements, such as those that fall within a recognized hearsay exception or are used for impeachment (e.g., prior inconsistent statement). The difference in treatment between opinions offered at trial and those contained in extrajudicial statements is justified by the different context.
• If an objection to trial testimony on the grounds of “opinion” is sustained, counsel can rephrase the question and usually elicit most of the desired information. In contrast, if an opinion is contained in an out-of-court statement and the declarant is unavailable, the application of the opinion rule operates as a rule of exclusion, rather than as one of preference, because there will be no opportunity to rephrase the question and elicit more concrete information.