EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, September 6, 2011

Fried Shrimp: 11th Circuit Finds No Problem With Lay Testimony On Standard Practices Of Truck Drivers

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' 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 the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, let's say that a truck driver and several other defendants are charged with stealing two containers of frozen shrimp from a shipping container yard. And let's say that the prosecution has several lay witnesses testify concerning the standard practice of truck drivers. Is this proper lay testimony? According to the recent opinion of the Eleventh Circuit in United States v. Collado, 2011 WL 3821997 (11th CIr. 2011), the answer is "yes."

In Collado

Hendy Collado and several co-defendants were charged with stealing two containers of frozen shrimp from a shipping container yard in Jacksonville and transporting them to Miami. It [wa]s undisputed that Collado drove his truck into the yard, picked up a container of frozen shrimp, and transported it to Miami. His defense at trial was that he did not know that the shrimp was stolen, and that the government failed to prove that the shrimp was part of interstate commerce and that its value exceeded $1,000.

This defense, however, was not successful, and Collado was ultimately convicted of conspiracy to possess stolen goods valued in excess of $1,000 and possession of stolen goods valued in excess of $1,000

After he was convicted, Collado appealed, claiming that the district court erred in allowing the prosecution to admit "expert" testimony concerning the standard practices of truck drivers. Specifically,

One witness, the terminal manager of the Jacksonville container yard, testified that when truckers came to the yard to pick up cargo, they were required to present certain paperwork, to inspect the container and its contents, and to sign certain paperwork. Another witness, the owner of the trucking company that Collado was working for, testified that Collado was required by the company and federal law to document his time and the loads he transported. As Collado did not comply with these requirements, the government argued that Collado knew that he was involved in an illegal scheme.

The government argued in response "that this testimony constituted lay opinion testimony under Fed.R.Evid. 701." The Eleventh Circuit disagreed, quickly concluding that

Rule 701 permits an officer or employee of a corporation to offer lay opinion testimony about industry standards...This is all the witnesses here testified about; they merely described shipping practices with which they were familiar, based on their own observations and personal experience. The district court, therefore, did not abuse its discretion in admitting their testimony.

I agree and think that the court's opinion finds support in the Advisory Committee's Note to the 2000 Amendment to Federal Rule of Evidence 701, which notes that 

The amendment is not intended to affect the ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(ing) to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.''...

For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. 

Indeed, the Eleventh Circuit previously cited to this language in Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co, Ltd., 320 F.3d 1216-17 (11th Cir. 2003), in which it found that a district court did not err in allowing ship repairers to offer lay opinion testimony about industry standards in the ship repairing industry and the reasonableness of the defendant’s charges and the time it took to complete the repairs.



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