Lay Witness Opinions
I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question is inspired by a conversation with a client during trial prep who expressed shock that she would not be permitted to express her opinion to the jury that the defendant driver was at fault for the crash.
As attorneys, we have gotten so used to the rules of evidence that we forget that non-lawyers sometimes are surprised or shocked by the rules.
Evidence Rule 701 puts strict limits on lay people’s ability to express their opinions in front of a jury. For this rule’s purposes, any person who does not qualify as an expert on the subject at issue is a layperson.
There is a method to what seems like madness.
Suppose a trial involves a car crash. Witnesses observing an impact are, of course, qualified to state what was observed. A witness can say they saw the blue car enter the intersection against a red light. That is a statement of an observed fact.
But unless the witness qualifies as an expert (in this case, an accident reconstruction expert), they are not permitted to offer an opinion on fault. They cannot state that it is their opinion that the blue car that entered the intersection against a red light is at fault.
If you are still scratching your head, consider that the witness might not have ALL of the facts available to them.
Imagine that the blue car that entered against a red light is a police car with its siren blasting. But, suppose the witness was wearing earbuds and could not hear the siren that other witnesses did hear.
The evidence rules are designed to funnel to a jury only credible, legitimate facts. It is the jury’s job to decide fault.
Some witnesses qualify as skilled lay witnesses. These skilled witnesses can offer limited opinions on limited subjects within their skill set.
A skilled lay witness may provide opinions based on the perception of the witness. In many situations, a police officer may qualify as a skilled lay witness if the opinion at issue is within the officer’s training.
For example, a police officer’s “impression” based on his personal participation in conversations with drivers at the scene is a proper lay witness opinion under Rule 701 because the “impression” is rationally based on his opinion of perceived facts and helpful to a clear understanding of the testimony
A police officer acting as a skilled witness may not offer opinion testimony under 701 if the opinion is based on others’ information and not of the officer’s own observation.
In other words, a skilled lay witness may testify about their observations but also offer opinions based solely on facts within their personal knowledge. They are not to consider facts outside of their knowledge presented to them in the courtroom. Nor are they permitted to offer opinions based on hypothetical questions.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”