Lay witnesses may also provide opinions, not just facts, in certain situations. Under 701 if the witness provides an opinion based on a rational basis of the perception, the testimony is helpful to the jury’s fact-finding (reliable and material), and avoid the expert’s realm, then the testimony may be admissible.

United States v. Yazzie, 976 F.2d 1252 (9th Cir. 1992). Yazzie was charged with selling cigarettes to a minor and wanted to present testimony of others who would testify that the minor appeared older. This is admissible.

United States v. Paiva, 892 F.2d 148 (1st Cir. 1989). A lay witness expressed her opinion that a substance was a certain kind of drug based on her frequent experience with it in the past. Is this testimony admissible? Yes.

United States v. Ganier

468 F.3d 920 (6th Cir. 2006).

Ganier was involved in deletion of certain files to hide evidence of his wrong doing. A day before trial, the government received a report from a computer specialist running certain search terms. This report was excluded because the witness was considered an expert and did not meet deadlines. The government is arguing the person is not an expert witness but instead is a lay witness because anyone could have run the programs used (Microsoft word and outlook). However, the court said that the procedure of searching was more technical and agreed that the witness was an expert within 702. The appropriate remedy though was no suppression, but a continuance.

United States v. Cano, 289 F.3d 1354 (11th Cir. 2002). An officer was able to decipher a code used in a phone book found in the defendant’s home. He was able to testify as a lay witness, not an expert, because the code was reasonably easy to crack. However, the court should have used a different word than “hieroglyphics.”


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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