An opinion is sometimes defined as a conclusion or inference that a witnesses has drawn from facts.  The distinction between "fact" and "opinion" has also been recognized to be a matter of degree:  statements of fact are simply more specific statements of opinion.{footnote} [2870]  See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168, 109 S.Ct. 439, 102 L.Ed. 2d 445, 462 (1988).{/footnote} 

As a general rule, witnesses may testify only as to facts they have personally observed, and may not interject their own opinions.{footnote}Randolph v. Collectramatic, Inc., 590 F.2d 844 (10th Cir. 1979).{/footnote}  See also PERSONAL KNOWLEDGE; COMPETENCY.  The reason for this is that the fact-finder is generally just as capable as the witness of drawing the proper conclusion from the facts in evidence.{footnote} [2872]Goren v. United States Fire Insurance Co., 688 A.2d 941 (Md. App. 1997). {/footnote}

Lay witnesses are not permitted to give opinions as to matters requiring the specialized knowledge or experience of an expert.{footnote} [2873]Goren v. United States Fire Insurance Co., 688 A.2d 941 (Md. App. 1997).
{/footnote}  

Lay Opinion

Lay opinions are those which require no specialized knowledge or experience.{footnote}Couch v. City of D’Iberville, 656 So.2d 146,153 (Miss. 1995){/footnote}
Whether to allow lay opinion testimony is a matter for the trial court’s discretion.{footnote} [2875]Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987); Trotter v. Todd, 719 F.2d 346, 349 (10th Cir. 1983).
            Tedesco v. Tedesco, 683 A.2d 1133 (Md. App. 1996).{/footnote}  The federal rules permit lay opinion testimony and do not limit the subject matter of the testimony.{footnote} [2876]  FRE 701; Bohannon v. Pegelow, 652 F.2d 729, 731 (7th Cir. 1981).{/footnote}  A lay witness may give an opinion only if (1) it is "rationally based on the perception of the witness" and (2) it is helpful either in understanding the witness’ testimony or in determining factual issues (see below).{footnote} [2877]FRE 701; United States v. Jackson, 569 F.2d 1003 (7th Cir. 1978); Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987).
            Wyatt v. Johnson, 653 A.2d 496 (Md. App. 1995).{/footnote}  Opinion testimony will generally be found "helpful" where it is the best evidence available as to a factual issue,{footnote}United States v. Schneiderman, 106 F. Supp. 892 (S.D. Cal. 1952).{/footnote} and where it is difficult for the witness to testify as to a particular fact without doing so in the form of an opinion.{footnote}United States v. Thomas, 571 F.2d 285 (5th Cir. 1978).{/footnote}

In determining the admissibility of lay opinion testimony, the concerns enumerated in FRE 403 must be considered.{footnote} Bohannon v. Pegelow, 652 F.2d 729, 732 (7th Cir. 1981); Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987).{/footnote}  See, e.g., CONFUSING EVIDENCE; CUMULATIVE EVIDENCE; DELAY; PREJUDICE. 

Sensory Perceptions.  Lay witnesses may testify as to their opinion of what something looked like,{footnote}Wood v. United States, 361 F.2d 802 (8th Cir. 1966).{/footnote} sounded like,{footnote}See Kolstad v. Rankin, 179 Ill. App. 3d 1022, 534 N.E.2d 1373 (4th Dist. 1989)(testimony as to how loud gunfire was).{/footnote} smelled like,{footnote}People v. Reed, 164 N.E. 847 (Ill. 1928).{/footnote} felt like or tasted like, since this kind of opinion is often the best evidence available.  See also QUANTITY; MEASUREMENTS; WEIGHT; COLOR; TIME; SPEED.

Mental State.  Lay opinion testimony as to another person’s mental state may be admitted.{footnote} [2884]John Hancock Mutual Life Ins. Co. v. Dutton, 585 F.2d 1289, 1293-94 (5th Cir. 1978); Bohannon v. Pegelow, 652 F.2d 729, 732 (7th Cir. 1981) (racial motive); Himmelbrand v. Harrison, 484 F. Supp. 803, 806 (W.D.Va. 1980).
            Law v. Central Illinois Public Service Co., 86 Ill. App. 3d 701, 408 N.E.2d 74 (4th Dist. 1980) (testimony that another was fearful, supported by objective signs of fear)
            But see Bell v. State, 691 A.2d 233 (Md. App. 1997) (testimony that criminal defendant had reason to be in fear of imminent danger held inadmissible).
            Wigmore § 661 at 773-74 (3d ed.){/footnote}  Again, the opinion must be "rationally based on the perception of the witness" (see above).  One who has simply observed a person during a particular incident has been held qualified to give an opinion as to that person’s motivation.{footnote} [2885]1.  Bohannon v. Pegelow, 652 F.2d 729, 732 (7th Cir. 1981); John Hancock Mutual Life Ins. Co. v. Dutton, 585 F.2d 1289, 1294 (5th Cir. 1978).{/footnote}  Opinion testimony as to a criminal’s intent may be excluded where it is not an element of the crime charged.{footnote}Schindler v. United States, 221 F.2d 743 (9th Cir.), cert. denied, 350 U.S. 938, 76 S.Ct. 310, 100 L.Ed. 819 (1956). [Check Schindler v. United States, 208 F.2d 289 (9th Cir.), cert. denied, 347 U.S. 938, 74 S.Ct. 633, 98 L.Ed. 1088 (1954).{/footnote}  See also INTENT; INSANITY–Lay Opinion; UNDUE INFLUENCE; INTOXICATION.

Ultimate Issues and Legal Opinions

Traditionally, witnesses could not give an opinion as to any of the "ultimate" issues in the case, because this was thought to invade the province of the jury.  The federal rule and the trend among the states is to accept opinion testimony that is otherwise proper even though it addresses an ultimate issue in the case.{footnote} [2887]  FRE 704; Owen v. Kerr-McGee Corp., 698 F.2d 236, 239 (5th Cir. 1983); Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985); Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987); United States v. Scavo, 593 F.2d 837 (8th Cir. 1979).
                        Johnson v. Lynch, 574 A.2d 934, 939 (N.H. 1990).{/footnote}  The proper focus is whether the testimony is helpful to the factfinder.{footnote}Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987).{/footnote}  See RELEVANCE–Probative Value.

If the opinion takes the form of a legal conclusion, it may appropriately be excluded as being unhelpful to the jury.{footnote} [2889]  FRE 702; Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 511 n.l7 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977); Owen v. Kerr-McGee Corp., 698 F.2d 236, 239 (5th Cir. 1983); Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985).  Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987); United States v. Guterriez, 576 F.2d 269 (10th Cir. 1978)(opinions as to guilt or innocence inadmissible).{/footnote}  Exclusion is appropriate where the terms used by the witness have a separate, distinct and special legal meaning.{footnote} Huff v. United States, 273 F.2d 56 (5th Cir. 1959); Torres v. County of Oakland, 758 F.2d 147, 151 (6th Cir. 1985); Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 (8th Cir. 1987) [Check U.S. v Cohen, 518 F.2d 727, 737 (2d Cir. 1975).]{/footnote}  Where the factfinder is a judge, admission of such testimony has been deemed harmless error.{footnote}Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 412 (8th Cir. 1987). {/footnote}  See also APPEAL–Prejudicial Versus Harmless Error.

Both experts and lay witnesses may express an opinion as to an ultimate fact.{footnote}Marx & Co., Inc. v. Diners’ Club, Inc., 550 F.2d 505, 512 (2d Cir. 1977).{/footnote}  Exclusion is appropriate where the witness is opining as to the legal effect of documents or conduct.{footnote}Marx & Co., Inc. v. Diners’ Club, Inc., 550 F.2d 505, 508-511 (2d Cir. 1977)(securities law); Loeb v. Hammond, 407 F.2d 779, 781 (7th Cir. 1969); Hawkins v. Chandler, 88 Idaho 20, 396 P.d 123 (1969) (opinion as to reasonableness of driver excluded); Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646 (1942); Wigmore sec. 1952 at 81.{/footnote}  Nor will witnesses be permitted to draw any kind of legal conclusion from the facts, since this is the sole province of the judge and jury.{footnote}Marx & Co., Inc. v. Diners’ Club, Inc., 550 F.2d 505, 510 (2d Cir. 1977); Helms v. Sinclair Refining Co., 170 F.2d 289 (5th Cir. 1948); Loeb v. Hammond, 407 F.2d 779, 781 (7th Cir. 1969);
            Briney v. Tri-State Mutual Green Dealers Fire Ins. Co., 254 Iowa 673, 117 N.W. 2d 889 (1962); Johnson v. Lynch, 574 A.2d 934, 939 (N.H. 1990); Prudential Ins. Co. Of America v. Uribe, 595 S.W.2d 554, 566 (Tex. Civ. App. 1979); Wigmore sec. 1918; McCormick sec. 12 at 26-27.{/footnote}

Existence of Contract.  Witnesses are not allowed to testify as to whether or not a contract existed between two parties, since this is a conclusion of law.{footnote}Briney v. Tri-State Mutual Grain Dealers Fire Ins. Co., 117 N.W.2d 889 (Iowa 1962); Federal Underwriters’ Exchange v. Cost, 123 S.W.2d 332 (Tex. 1938).{/footnote}

Performance of Breach of Contract.

Agency Relationship.  Witnesses are not allowed to testify as to whether or not an agency relationship existed between two parties, since this is a conclusion of law.

Negligence.  Witnesses generally will not be allowed to testify as to whether a person acted negligently{footnote}Clifford-Jacobs Forging Co. v. Industrial Commission, 166 N.E.2d 582 (Ill. 1960); Delany v. Badame, 49 Ill. 2d 168, 274 N.E.2d 353 (1971)(witness may not testify that car was going "too fast").{/footnote} or was at fault, and witnesses ordinarily may not testify as to what they would have done in someone else’s position.3

Dangerousness.  Whether a person’s conduct in the past or a specific condition is or was "dangerous" is a question within the competence of the trier of fact, and therefore expert opinions on such a question are not allowed.{footnote}Stoler v. Penn Central TRansportation Co., 583 F.2d 896 (6th Cir. 1978) (no expert opinion allowed as to whether condition was "extra hazardous"); Wilkerson v. City of El Monte, 17 Cal. App. 2d 615 (1936).{/footnote}

Causation.  Lay persons may testify as to what caused a simple or very ordinary occurrence,{footnote}Schmidt v. Chapman, 131 N.W.2d 352 (Wis. 1964).{/footnote} but not as to the cause of more complex events where special expertise is necessary.{footnote}Duntley v. Inman, Poulsen & Co., 70 P. 529 (Or. 1902); Annot., 38 A.L.R.2d 13.{/footnote}

Criminal Defendant’s Mental State.  As stated earlier, opinion testimony as to a criminal’s intent may be excluded where it is not an element of the crime charged.{footnote}Schindler v. United States, 221 F.2d 743 (9th Cir.), cert. denied, 350 U.S. 938, 76 S.Ct. 310, 100 L.Ed. 819 (1956). [Check Schindler v. United States, 208 F.2d 289 (9th Cir.), cert. denied, 347 U.S. 938, 74 S.Ct. 633, 98 L.Ed. 1088 (1954).{/footnote}  See also INTENT.  In federal trials, expert witnesses may not give an opinion on the ultimate issue of whether or not the defendant had the requisite mental state or condition to satisfy an element of a crime with which the defendant is charged.{footnote}FRE 704; United States v. Prickett, 604 F. Supp. 407 (S.D. Ohio 1985)(opinion as whether defendant raising entrapment defense was predisposed to commit crime excluded).{/footnote}  Conclusions as to this issue must be reserved for the trier of fact.

Guilt or Innocence.  Opinions as to the guilt or innocence of a criminal defendant are inadmissible.{footnote}United States v. Guterriez, 576 F.2d 269 (10th Cir. 1978){/footnote}

Collateral Matters

In order to expedite the trial, a court may permit opinion testimony as to collateral matters (questions not directly at issue in the case).

Exclusion on Other Grounds

Opinion testimony, as with all other forms of evidence, may be excluded if it is unduly prejudicial or a waste of time.

Requesting Stipulations

Parties may request stipulations of opinions as well as facts.  See STIPULATIONS.

Hearsay Evidence
West sec. 314 (2)

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OBSCENITY–Expert Testimony; SPEED
VALUATION