Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series RULE 701

Montgomery County Criminal Defense Attorney Brian Foley Discusses Texas Rule of Evidence 701

Texas Rule of Evidence 701 provides that a non-expert witness may give their opinion if they personally observed, heard, or experienced the facts that make the basis of the opinion. This rule is one of the most misunderstood points of trial law that I have encountered. This rule gets confused with Expert Opinions as well as opinions that go to the ultimate issue in Rule 704.

If you're a lawyer you are probably thinking, oh yes opinions on the ultimate issue are not allowed . . . WRONG! Rule 701 allows a lay witness to give an opinion based on their perceptions and Rule 704 says it can go to the ultimate issue in the case. Meaning if someone saw a person acting in self-defense in person that lay person could say that in their opinion the person acted in self-defense.

Rule 704. Opinion on an Ultimate Issue An opinion is not objectionable just because it embraces an ultimate issue.

Under the common law lay opinions were prohibited from being offered in evidence. Lawyers would fill in the gaps by asking questions of the witness that allow the perceptions of the witness to explain their opinion. This is still a good strategy today. You should never just ask a witness, "what is your opinion of if the defendant was acting in self-defense?" You should ask a series of questions which show what the witness actually saw that lead him to the conclusion that the defendant was acting in self-defense. But when taken to the extreme it can be unhelpful. For example if you wanted to convey that a person looked sad you can simply ask if they look sad. Another way to break it down, but more akwardly, would be to say, Did you notice anything about the person's eyes? "Yes" What did you notice? "There were tears coming out of his eyes." Rule 701 prevents disruption of the trial based on objections to the "opinion" that the person in the above example is sad.

In Fairow v. State 943 S.W.2d 895 (Tex. Crim. App. 1997) the Texas Court of Criminal Appeals ruled that a lay witness may provide an opinion as to the mental state of the defendant in a capital murder trial. It is not possible to have personal knowledge of the mental state of another however the court ruled that a witness could say that based on their perception of the events that they personally observed the witnesses concluded that the shooting was an accident. Id.

In a civil case a lay witness may not give an opinion on how much compensation a plaintiff should recover for pain and suffering. This is because it fails the part of the Rule 701 test that it is "helpful" to the jury. Clark v. McFerrin, 760 S.W.2d 822, 828 (Tex. App. -- Corpus Christi 1988, writ denied).

Courts have also ruled that any lay witness may testify about the value of property if they have an adequate basis for the opinion based on personal knowledge of the property. Collins v. Collins, 904 S.W.2d 792, 806 (Tex. App. --Houston [1st Dist.] 1995).

A police officer has been ruled to be allowed to testify that a substance is marijuana based on his own perception and personal knowledge. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

Thus, although police officers have training and experience, they are not precluded from offering lay testimony regarding events which they have personally observed. See e.g., Reece v. State, 878 S.W.2d 320, 325 (Tex.App.-Houston [1 dist.] 1994, no pet.) (police officer testified that, in his opinion, based on his experience, the actions he observed were consistent with someone selling drugs); State v. Welton, 774 S.W.2d 341, 343 (Tex.App.-Austin 1989, pet. ref'd) (police officer permitted to testify as non-expert opinion witness regarding intoxication based in part on smelling the odor of alcohol).

Osbourn v. State, 92 S.W.3d 531, 536 (Tex. Crim. App. 2002)

The purpose of Rule 701 is really to exclude lay witnesses from relying on hearsay and the statements and documents involved in the case. Expert witnesses may rely on these things and expound on their opinions on issues in the case.

This rule is a corollary to rule 602 which requires personal knowledge in order to testify on a certain matter.

Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Rule 701 Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception; and

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.

Comment to 2015 Restyling: All references to an “inference” have been deleted because this makes the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.

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