Friday, January 22, 2021
Supreme Court of New Jersey Finds Lay Opinion Testimony Does Not Need to Offer Something the Jury Lacks
New Jersey Rule of Evidence 701 states that
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it:
(a) is rationally based on the witness’ perception and
(b) will assist in understanding the witness' testimony or determining a fact in issue.
Subsection (a) is easy enough to understand. Let's say that Laura sees Dan hunched over, sweating, and panting at the corner of State and Main. If she wanted to offer opinion testimony that Dan had recently been running, her testimony would be rationally based on her perception. Conversely, if Dan was upright, free of sweat, and breathing normally, opinion testimony by Laura that Dan had recently been running would not be rationally based on her perception. Similarly, if Dana's friend Felix told her he'd seen Dan hunched over, sweating, and panting at the corner of State and Main, Laura could not offer opinion testimony because it would not be based on her perceptions.
But what about Subsection (b)?
In State v. Singh, 2021 WL 203335 (N.J. 2021), Amrit Singh was charged with was charged with first-degree robbery and related offenses based on allegedly robbing a gas station. A surveillance video of the gas station showed a masked man with sneakers committing the robbery. At trial, the detective who arrested Singh testified that that, in his opinion the sneakers that Singh was wearing looked like the sneakers in the surveillance video. The surveillance video and sneakers were also admitted into evidence at trial as an exhibit.
After Singh was convicted, he appealed, claiming that the detective's testimony was inadmissible under Rule 701(b) because the jury just as easily could have made the comparison because they were presented with the sneakers and surveillance video. The Supreme Court of New Jersey disagreed, concluding that Rule 701(b)
does not require the lay witness to offer something that the jury does not possess. Nor does it prohibit testimony when the evidence in question has been admitted, as it was here. Such a construction of N.J.R.E. 701 would even prohibit questions asked by defense counsel as to whether shoes a family member saw defendant leave the house in resembled the shoes in evidence. We decline to write such an additional requirement into that rule of evidence....
Simply because the jury may have been able to evaluate whether the sneakers were similar to those in the video does not mean that Detective Quesada's testimony was unhelpful. Nor does it mean that Detective Quesada's testimony usurped the jury's role in comparing the sneakers. Indeed, the jury was free to discredit Detective Quesada's testimony and find that the sneakers in evidence were dissimilar to those on the surveillance video.
I disagree with the court's conclusion. First, I disagree that "[s]uch a construction of N.J.R.E. 701 would even prohibit questions asked by defense counsel as to whether shoes a family member saw defendant leave the house in resembled the shoes in evidence." That doesn't seem true. The jury wasn't at the defendant's house and therefore would have no idea whether the shoes the defendant was wearing when he left his house resembled the shoes is evidence.
Conversely, in Singh, (1) the jury saw the same surveillance video that the detective saw; and (2) the jury saw the same sneakers taken from Singh that the detective saw. Therefore, the detective was in no better position than the jury to compare the two.
Now, of course, the Supreme Court of New Jersey also held that Rule 701(b) "does not require the lay witness to offer something that the jury does not possess." But I would say that is the whole purpose of Rule 701(b). As the First Circuit noted in United States v. Diaz-Arias, 717 F.3d 1, 12 (1st Cir. 2013),
Lay opinion testimony will not be “helpful” to the jury “when the jury can readily draw the necessary inferences and conclusions without the aid of the opinion.”...The “nub” of this “helpfulness” requirement is “to exclude testimony where the witness is no better suited than the jury to make the judgment at issue, providing assurance against the admission of opinions which would merely tell the jury what result to reach.”
Here, because the detective was "no better suited than the jury to make the judgment at issue," I think his opinion testimony was inadmissible.