This column is adapted from a book published last month by MICPEL, Pattern Examinations of Witnesses for the Maryland Lawyer, Fourth Edition, by Paul Mark Sandler and James K. Archibald.
Soliciting testimony from a lay witness about his opinion is a delicate matter. Courts will often disallow lay opinions, but not if they are drawn out with care and in accordance with evidentiary rules and case law. Consider the following scenario:
The United States indicts the local director of a federally funded program for willful misapplication of funds. The defendant places in issue the question of his willfulness, claiming that he did not know and understand the particular requirements of the program which he is charged with violating. The Government calls the director’s secretary, seeking to obtain her testimony on whether, in her opinion, the director fully understood the requirements of the program.
Q. State your name, please.
A. Gwendolyn Jackson.
Q. Where are you employed?
A. The office of Federal Support for Wild Animals.
Q. What is the office of Federal Support for Wild Animals?
A. It is a federally funded program to protect wild animals from cruelty.
Q. What is your position in that department?
A. I am a secretary to the director, Mr. Smith.
Q. How long have you served as his secretary?
A. For the past three years.
Q. What are your responsibilities as his secretary?
A. General typing, administrative work, and serving as a liaison between other members in the office and the director.
Q. During the course of your employment as the director’s secretary, do you have occasion to work with him on projects?
A. Yes, I do.
Q. Do you have occasion to attend meetings with him?
A. Yes, I do.
Q. Do you have occasion to observe him as he performs his responsibilities?
A. Yes, I do.
Q. Do you ever have occasion to attend meetings with him where the purposes and rules of operating the office are explained and discussed?
A. Yes, many times.
Q. Do you have an opinion as the whether Mr. Smith knew and understood the requirements of the program as to eligibility to receive federal funds?
A. Yes, I do.
Q. And what is that opinion?
A. Mr. Smith fully appreciated and understood the rules and requirements of the program with regard to awarding and applying federal funds to those who were eligible.
Generally, lay witnesses may not state opinions in court. Nevertheless, Federal Rule of Evidence 701 and Maryland Rule 5-701 provide that a lay witness may testify in the form of an opinion if the opinion is 1) rationally based on the perception of the witness and 2) helpful to a clear understanding of the testimony or the determination of a fact in issue. (One of several helpful cases on this subject is Ragland v. State, published by Maryland’s highest court in 2005.)
Most often lay witnesses are called upon to render opinions on speed, height and distance, sobriety, mental capacity, and the value of property. Lay witnesses can also testify that another person appeared nervous, and they can testify about their own physical symptoms, such as vision impairment.
Counsel must be careful to elicit responses from the witnesses to demonstrate that their opinions are based on observation. Thus, in the example above the prosecutor ask several foundational questions before soliciting the secretary’s opinion of the director’s knowledge and understanding.
Without such groundwork, lay opinions can be excluded by the court. The court may also properly exclude a lay opinion if the opinion encompasses a legal conclusion or testimony the court believes is not helpful.
Certainly, superfluous opinions are rejected in favor of hearing testimony about underlying facts. A witness’s opinion about the believability of another witness’s testimony, for instance, is not admissible. On the other hand, lay witnesses called as character witnesses may render opinions as to another witness’s character traits for veracity.
In the example above, the witness is asked to express an opinion concerning another individual’s state of mind. See United States v. Fowler, 932 F.2d 306 (4th Cir. 1991), where the court permitted officials to render opinions that a person with the defendant’s experience would know the rules about classified documents not being available to contractors. Even if the lay opinion focuses on the ultimate issue of a case, Federal Rule of Evidence 704 and Maryland Rule 5-704 would permit the opinion, in the discretion of the court.
It is debatable whether the type of opinion rendered in this example would be admissible in every court. Significantly, Rules 701 and 5-701 are rules of discretion. Different judges could reach different determinations when confronted with the same facts. The rules, however, relax the traditional view that lay opinions are not admissible, and relax the foundational requirements for the admissibility of those opinions.