Technical experts often rely, necessarily, on the opinions of other experts with different expertise. Under Rule 703, courts routinely let experts testify based on otherwise inadmissible evidence, including the hearsay opinions of other experts or the work product of others who may or may not be experts. Similarly, an understanding of how your particular court interprets the scope and requirements for lay opinions and expert witness testimony is essential when developing your case strategy.Federal Rule of Evidence 703 lets an expert base an opinion on “facts or data in the case that the expert has been made aware of” and not just facts or data that the expert has “personally observed.” The facts or data “need not be admissible” for the expert’s opinion to be admitted if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.
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Given the nuance between lay and expert testimony, an early assessment of what, if any, opinions witnesses may offer at trial is critical. The court focused on the fact that the agent lacked first-hand knowledge sufficient to lay a foundation for a lay witness opinion under rule 701(a). The agent had provided voice identifications and substantive interpretations of the meaning of various statements contained in the calls. 2013), the Sixth Circuit reversed and remanded a trial court’s decision to permit an FBI agent’s lay witness testimony interpreting phone calls between codefendants. Taking a narrower view of rule 701, the Sixth Circuit reached a different result in a case involving similar facts.
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2011), the Eleventh Circuit permitted an FBI agent to testify as to the meaning of alleged code words used between codefendants, even though the calls were predominantly in Arabic and the agent did not speak the language. Some courts take a broad view of lay witness opinions. Experts may testify “in the form of an opinion or otherwise”-it is entirely appropriate for an expert to testify generally about principles, methods, or other information and leave the ultimate inference or “opinion” to the finder of fact.įederal circuit courts have come to different conclusions regarding the scope of permissible lay opinion testimony. Under rule 701, a lay witness may provide an opinion that is (1) rationally based on the witness’s perception (2) helpful to clearly understanding the witness’s testimony or to determining a fact in issue and (3) not based on scientific, technical, or other specialized knowledge within the scope of rule 702.Įxpert testimony, in contrast, is only permissible if a witness is “qualified as an expert by knowledge, skill, experience, training, or education” and the proffered testimony meets four requirements: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue (2) the testimony is based on sufficient facts or data (3) the testimony is the product of reliable principles and methods and (4) the expert has reliably applied the principles and methods to the facts of the case.
The Federal Rules of Evidence governing lay opinions and expert testimony-rules 701 and 702 respectively-set forth the standards for admissibility of both categories of evidence. Such disclosures or agreements will ensure that important testimony that counsel hopes to rely on is not excluded on the eve of trial. To avoid any uncertainty, attorneys should consider either disclosing lay witness opinions or pursuing an agreement with opposing counsel as to the exact nature of the disclosures required for specific testimony to be elicited in the case. However, given the fine line some courts draw between lay witness opinions and expert testimony, lawyers must review the authority in their particular jurisdiction early in the case. Conversely, lay witness opinions typically need not be disclosed in advance of trial or supported by formal reports. Rule 26(a)(2) requires expert reports from retained experts. This article discusses the distinctions between lay witness testimony and expert testimony.Īs an initial matter, one critical issue lawyers must consider when assessing whether reliance on lay or expert opinions will be necessary is the disclosure requirements in Federal Rule of Civil Procedure 26(a)(2) that apply to expert testimony.
Courts throughout the country have come to different conclusions about the scope of permissible lay opinions and what constitutes expert testimony. However, the distinction between lay opinions and expert testimony is not a bright line. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
When testimony is “expert” in nature, it must comport with the stringent standards articulated by the U.S.
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