706.1Lay Opinion [Rule 701]
- A lay witness may testify in the form of an opinion as long as the opinion is based on the witness’s personal knowledge and it is helpful to understanding the witness’s testimony or determining a fact in issue.
- Lay opinion testimony is frequently used to express a shorthand statement of fact (e.g., “he looked really angry”) when it would be impractical to testify about all the various observations and contemporaneous thoughts that factored into the opinion.
- Lay opinions on some topics are generally permitted (e.g., intoxication, speed of vehicle, person’s mental or emotional state) while others are not (e.g., witness’s credibility, guilt of defendant, medical diagnosis).
The Basic Rule
Rule 701 – Opinion Testimony by Lay Witness
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
G.S. 8C-701 (re-formatted for clarity).
Rule 701 permits a lay witness to testify in the form of “opinions or inferences,” subject to two important limitations: (a) the testimony must be “based on firsthand knowledge or observation” and (b) it must be “helpful in resolving issues” related to facts or testimony in the case. See G.S. 8C-701(a), (b), Official Commentary. Compare State v. Wilkerson, 363 N.C. 382 (2009) (witness's inference that a firearms sale had taken place, even though she did not directly witness it, was a permissible lay opinion under Rule 701 based on her observations that "her husband had procured firearms after speaking with defendant; that when defendant and Malanowski arrived, Mr. Davis showed the weapons to defendant; that she heard defendant explain his need for a firearm; that she noticed that weapons were missing from the house after defendant departed; and that afterwards she saw that her husband had a substantial amount of cash") with State v. Ziglar, 209 N.C. App. 461 (2011) (no error in excluding defendant's lay opinion about whether he would have been able to stop the vehicle even if he had not been impaired since no foundation was laid to show how defendant, in his intoxicated condition, would have had a basis for forming such an opinion). See also the related Evidence entry on Personal Knowledge [Rule 602]. The jury decides how much weight should be given to the lay opinion testimony. See State v. Davis, 321 N.C. 52 (1987).
The current test for admissibility under Rule 701(a) is less demanding than the old common law rule, which only allowed lay opinion testimony when it was “necessary” because the “articulation of more primary components [was] impossible or highly impracticable.” G.S. 8C-701, Official Commentary.
However, to be admissible under Rule 701(b), a lay opinion still must be genuinely helpful to understanding the witness’s testimony or determining an issue in the case. If the witness’s opinion is merely an assertion “which amount[s] to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule.” G.S. 8C-701, Official Commentary; see State v. Elkins, 210 N.C. App. 110 (2011) (quoting commentary).
The Court of Appeals reviews the admissibility of lay opinion testimony under an abuse of discretion standard. See State v. Snead, 239 N.C. App. 439 (2015), rev’d in part on other grounds, 368 N.C. 811 (2016). If an improper lay opinion is admitted at trial, the defendant must show prejudice to be entitled to relief on appeal. See State v. Orellana, 260 N.C. App. 110 (2018); State v. Solomon, 259 N.C. App. 404 (2018); State v. Bellamy, 172 N.C. App. 649 (2005).
Permissible and Impermissible Lay Opinions
The scope and admissibility of several common types of lay opinion testimony are discussed briefly below.
Shorthand Statement of Fact
The most common type of permissible lay opinion is called a “shorthand statement of fact,” which refers to the “instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.” State v. Alexander, 337 N.C. 182 (1994).
Opinion testimony summarizing observed facts is admissible because while “a description of all the underlying detailed facts that helped to form the witness' opinion may be possible,” it “is not practical due to the inherent difficulties in articulating one's analytical thought processes.” State v. Lesane, 137 N.C. App. 234 (2000). See, e.g., State v. Brown, 182 N.C. App. 115 (2007) (permissible lay opinion for witness to testify that other motorist’s lane was ending so he was “trying to force his way back over” but he was “forced to take the path that he was on”); State v. Graham, 186 N.C. App. 182 (2007) (officer’s opinion testimony in burglary trial that door had been forced or kicked open was a permissible shorthand statement of fact, based "upon seeing the door standing ajar but still bolted, and the splintered door frame"); State v. Lesane, 137 N.C. App. 234 (2000) (witness allowed to testify in form of an opinion that defendant “was trying to shoot him in the head” where testimony about exact body position, placement, and angles would have been impractical); State v. Braxton, 352 N.C. 158 (2000) (permissible lay opinion where prison officer testified that screaming sounded “like somebody is fearing for their life” and the crime scene looked “worse than any hog killing he had ever seen”); State v. Waddell, 130 N.C. App. 488 (1998) (permissible lay opinion where witness testified that child was using two dolls to “illustrate” various sexual acts that the defendant committed on the child).
Mental or Emotional Condition
In addition to summarizing facts or occurrences, a lay opinion also may be used as shorthand to describe the mental or emotional condition of a person, as long as that opinion is similarly based on the testifying witness’s instantaneous conclusions of the mind, derived from various facts presented to the witness’s senses all at once. See, e.g., State v. Orellano, 260 N.C. App. 110 (2018) (detective’s description of victim’s demeanor as thoughtful, pausing, “just trying to recollect,” and “genuinely affected by what happened” were permissible shorthand statements, and not improper vouching for the victim); State v. Pace, 240 N.C. App. 63 (2015) (no error in allowing mother to offer lay opinion about changes she observed in her daughter's behavior that she believed were a result of the sexual assault); State v. Phillips, 365 N.C. 103 (2011) (no error in allowing witness to express opinion that defendant "knew what he was doing" and "had it planned out" as shorthand expressions of defendant's demeanor, based on witness's observations); State v. Roache, 358 N.C. 243 (2004) (witness’s testimony that defendant was the “aggressor” and “would have killed me if he could have” was a permissible shorthand statement explaining the witness’s perceptions); State v. Johnston, 344 N.C. 596 (1996) (permissible lay opinion where witness testified that defendant was “going to do something” and victims did not have time to leave before defendant approached).
However, a lay opinion regarding another person’s “mental or emotional state” may not go so far as to constitute a psychiatric or psychological diagnosis unless the condition is one that is easily recognized as a matter of common knowledge. See, e.g., State v. Merrill, 138 N.C. App. 215 (2000) (husband was not qualified to express an opinion that defendant suffered from multiple personality disorder as “a lay witness may not express an opinion as to the existence or nonexistence of a disease or disorder, when that disease does not occur so commonly or have such readily recognizable symptoms as to be capable of diagnosis by persons of ordinary experience, knowledge or training”); State v. Storm, 228 N.C. App. 272 (2013) (social worker testifying as a lay witness could not offer opinion that defendant “appeared noticeably depressed with flat affect” as such testimony was comparable to an expert diagnosis). But see State v. McClain, 169 N.C. App. 657 (2005) (witness’s testimony that defendant was “not mentally retarded” was a permissible lay opinion since statement was not intended as a diagnosis, but merely a shorthand expression of defendant’s ability to function on a daily basis).
Lay Opinion Based on Special Qualifications
Lay opinion testimony is normally restricted to matters that are within the personal knowledge of the witness, but “if by reason of opportunities for observation he is in a position to judge ... the facts more accurately than those who have not had such opportunities, his testimony will not be excluded on the ground that it is a mere expression of opinion.” State v. Friend, 164 N.C. App. 430 (2004) (deputy who was experienced in fingerprinting techniques properly allowed to give lay opinion regarding why no prints were recovered in the case: deputy was “in a position to review the surrounding facts more accurately than anyone else and his testimony aided the jury in understanding why fingerprints were not recovered from the stolen property”). Similarly, a properly qualified lay witness may testify in the form of an opinion regarding matters of “common practice or usage” in that field or area. See, e.g., State v. Bunch, 104 N.C. App. 106 (1991) (task force agent properly allowed to testify that it was common practice in the drug trade in the city for one person to hold the money and another person to hold the drugs).
In other words, a lay witness who possesses special training or experience may be permitted to express an opinion or conclusion about an issue in the case that goes beyond the direct observation and personal knowledge of the facts at hand. See, e.g., State v. Crandell, 208 N.C. App. 227 (2010) (in a murder case involving a shooting, the trial court did not abuse its discretion by allowing a detective to give lay opinion testimony concerning the calibers of bullets recovered at the crime scene); State v. Hargrave, 198 N.C. App. 579 (2009) (based on his training and experience, officer was properly permitted to give opinion testimony that the manner of packaging of cocaine, along with the quantity and denominations of cash on defendant, indicated that defendant was engaged in selling drugs); State v. Smith, 357 N.C. 604 (2003) (nurse properly permitted to give lay opinion, based on her professional experience, about typical effects caused by Valium); State v. Miller, 142 N.C. App. 435 (2001) (trooper's testimony regarding his knowledge of characteristics of tires following an accident and towing was permissible lay opinion, and was not improperly used to show ultimate fact issue of lane that each vehicle was in prior to fatal accident); State v. Kandies, 342 N.C. 419 (1996) (officer who worked part-time doing car repair and body shop work was properly permitted to testify that red spots on car appeared to be red oxide primer, rather than blood).
But where is the line?
A number of recent cases have held that testimony from a purported lay witness with special qualifications should have been treated as “expert opinion testimony,” and its admissibility should have been evaluated under Rule 702, including the related requirements such as giving notice and providing the expert’s CV and opinion in discovery. See, e.g., State v. Broyhill, 254 N.C. App. 478 (2017); State v. Davis, 368 N.C. 794 (2016); State v. Armstrong, 203 N.C. App. 399 (2010).
For further discussion of this issue, see John Rubin, “A Rare Opinion on Criminal Discovery in North Carolina,” N.C. Criminal Law Blog, May 3, 2016. If a prosecutor anticipates eliciting opinion testimony from a witness about a highly specialized or technical matter, the safer course is to plan on tendering the witness as an expert and giving the defense advance notice and full discovery.
Estimate of Vehicle Speed
Any witness of ordinary intelligence and experience who had a reasonable opportunity to observe a vehicle in motion and judge its speed my offer a lay opinion as to the speed of that vehicle – absolute accuracy is not required. See State v. Barnhill, 166 N.C. App. 228 (2004); State v. Grice, 131 N.C. App. 48 (1998). But see Marshall v. Williams, 153 N.C. App. 128 (2002) (two witnesses, ages 11 and 13 at time of accident, who had only ever been passengers in a car and did not watch the subject car continuously before the accident, were not permitted to testify regarding exact speed of the vehicle, but they were allowed to testify that it was going “pretty fast” or at a “fast speed”).
A lay witness is generally not permitted, however, to give an opinion about the cause of an accident. Instead, a witness must be qualified as an expert to offer such an opinion. For more information, see the related Expert Testimony entry on Accident Reconstruction.
A lay witness (including an officer) may express an opinion that a person was intoxicated or impaired if the witness had a sufficient opportunity to observe the person. See State v. Speight, 166 N.C. App. 106 (2004), aff’d in part and modified in part on other grounds, 359 N.C. 602 (2005) (officer’s opinion that defendant was “impaired” was rationally based on officer’s perceptions and observations of defendant at the accident scene, interviews with witnesses, and odor of alcohol); State v. Rich, 351 N.C. 386 (2000) (lay person may give an opinion about the intoxication of another as long as it is based on the witness’s personal observations); State v. Adkerson, 90 N.C. App. 333 (1988) (officer could give non-expert testimony that defendant appeared to be “high,” based on observation of defendant’s driving, appearance, and behavior).
Credibility or Truthfulness of Another
A lay witness may not offer an opinion that another person was “lying” or “telling the truth” (because that determination is ultimately left up to the jury), but the witness will generally be permitted to testify about the other person’s behavior, demeanor, expressions, or reactions that formed the basis of such an opinion. See, e.g., State v. Houser, 239 N.C. App. 410 (2015) (officer testifying as lay witness could not invade province of jury by commenting on credibility of the defendant); State v. Gobal, 186 N.C. App. 308 (2007) (detective could testify that witness became less nervous during the interview, but not his conclusion that witness was therefore telling the truth); State v. Robinson, 355 N.C. 320 (2002) (witness may not give opinion testimony vouching for truthfulness of another witness). But see State v. O’Hanlan, 153 N.C. App. 546 (2002) (detective was not expressing an improper opinion that he believed the crime occurred the way the victim described it; he was “explaining why he did not pursue as much scientific testing of physical evidence in this case as he would a murder case because the victim in this case survived and was able to identify her assailant”). See also State v. Westall, 116 N.C. App. 534 (1994) (officer permitted to testify that he thought defendant was lying, in response to direct question from defense counsel about why the officer stopped taking notes during the interview).
For more information about attacking or supporting the credibility and truthfulness of a witness, see the related Evidence entry on Impeachment: Character, Conduct [Rule 608].
Expert witnesses are similarly barred from offering an opinion that another witness is inherently credible or truthful; however, a properly qualified expert witness may be permitted to express an opinion about another person’s mental or psychological ability to testify truthfully. For more information, see the related Expert Witness entry on Polygraphs, Plethysmography, and Witness Credibility, Section B.
Neither a lay witness nor an expert witness may testify to an opinion that the defendant is guilty, because that determination belongs to the jury and the witness’s personal opinion is not considered “helpful” in deciding that question. See, e.g., State v. Elkins, 210 N.C. App. 110 (2011) (finding error, but no prejudice, where officer expressed lay opinion that defendant “was, indeed, the offender in this case”); State v. Martinez, 212 N.C. App. 661 (2011) (improper to permit lay opinion testimony from DSS witness that abuse was “substantiated”); State v. Giddens, 199 N.C. App. 115 (2009) (similar ruling); State v. Kelly, 118 N.C. App. 589 (1995) (error to permit opinion testimony from parents that they were sure the defendant was the person who abused their children).
For more information about opinion testimony regarding other “ultimate issues” to be decided in the case, see the related Evidence entry on Opinion on Ultimate Issue [Rule 704].