The Lay Opinion Rule

Typically, laypeople can’t attest to specific facts in your case. Most people would agree that it would be inappropriate for a grocery store customer to testify about the kind of gun a defendant used in a robbery.

There are times, however, when a lay witness can adequately testify in your case. The courts allow this in certain situations under the “Lay Opinion" rule.

See how this rule works with examples of when the courts allow it below. You can also talk to a defense attorney about how to use testimony and other evidence to fight criminal charges.

How Does the Lay Opinion Rule Work?

Expert opinions can be invaluable. Hiring someone to provide expert testimony can be very expensive, though, and there’s no guarantee that the judge will allow them to testify. The last thing you want to do is hire an expert only to learn that the prosecutor objects to the admissibility of their testimony.

Regarding lay witnesses, they must answer questions in the form of statements. This is the case for all witnesses. They can testify about what they saw, heard, felt, tasted, or smelled. Usually, the judge doesn’t let them express their opinions or draw conclusions, but there are times when they allow it.

Under the Federal Rules of Evidence (FRE), a court will permit a person who isn’t testifying as an expert to testify in the form of an opinion. 

According to FRE 701, a judge can allow a layperson to offer an opinion if it meets the following two conditions:

• Their opinion is rationally the result of their perception
• Their opinion helps explain the witness’s testimony

Most courts allow this evidence if the opinion testimony helps determine specific facts. It’s important to remember that layperson testimony is subject to cross-examination by the State. The prosecutor can also present their witness testimony. For example, they may have the police officer who arrested you testify about what they saw at the crime scene.

When the Lay Opinion Rule Applies

The Lay Opinion Rule does not always apply. Sometimes, a judge will refuse to let a non-expert testify about their opinion. There are also cases where expert opinion testimony is necessary. 

Experts have specialized knowledge, whereas a layperson only has personal knowledge about the subject matter of a case.

According to FRE 701, a competent layperson may provide opinions on certain subjects expressly permitted by rule, statute, or case law.

Lay opinion testimony can speak to the following:

• A person’s identity
• A person’s sanity
• A person’s state of mind
• Demeanor, mood, or intent
• Identification of handwriting
• Intoxication or sobriety
• Property ownership
• Health, sickness, or injury
• Mental condition
• Speed, distance, and size
• The value of a witness’s property

Layperson testimony involves the perception of the witness. They can testify about personal observations made during or after the criminal act. The lay witness’s opinion must result from firsthand knowledge. The hearsay rules still apply.

Challenges to a Layperson’s Testimony

Sometimes, the trial judge will deem a lay witness’s opinion evidence inadmissible.

In criminal cases, the judge will disallow the witness’s perception about such things as:

• The defendant’s guilt
• Medical diagnoses
• Defendant’s credibility
• Credibility of other witnesses’ opinions

The prosecutor can object to opinion testimony. However, the trial court judge doesn’t have to sustain their objection, even if such testimony is the ultimate issue for fact-finders to determine. They may allow the trier of fact (jurors) to determine if the testimony is credible.

Laying the Foundation for Lay Opinion Testimony

Before an attorney can present lay witness testimony, they must establish a foundation for the testimony. It isn’t enough that the witness has something to say about the case. The court requires that the party presenting the witness demonstrate that the person’s opinion has value and comes from firsthand knowledge.

Your attorney will establish this foundation using direct examination. This means they will ask the witness questions to prove they were present during the crime, or, if their testimony speaks to planning or covering up the crime, they will ask them questions specifically about that.

Review Evidence and Defense Strategies With An Attorney

The laws of evidence are rooted in the common law. They represent deep legal values in this country. The Federal Rules of Evidence have shaped the decisions judges have made for years.

While these laws have grown and changed to meet the needs and mores of modern times, they still are challenging to comprehend. Contact a local criminal defense lawyer if you have questions about the Lay Opinion Rule or any other evidence rules.