Friday, November 12, 2021
Federal Rule of Evidence 701 provides that
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;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Opinion testimony by an eyewitness identifying the perpetrator would typically be admissible under Rule 701. But that was not the case in United States v. Howell, 2021 WL 5177103 (6th Cir. 2021).
In Howell, a jury convicted Gene Howell of armed bank robbery, brandishing a firearm during the robbery, a separate attempted armed bank robbery, discharging a firearm during the attempted robbery, and being a felon in possession of a firearm. Howell was convicted in part based upon testimony by Dianne Talbott, the bank's manager, identifying Howell as the robber. But there was a problem with Talbott's testimony: There was no indication that she could actually identify Howell, either based upon what she observed on the day of the robbery or when she had seen Howell about three years before the robbery.
At one point at trial, Talbott testified about the robber, "I could tell it was a man, but that was all. I was so frightened. You know, I wasn't even paying any attention to the voice really. But I knew it was a man." But she also testified as follows:
Q. All right. Did you learn that the defendant had been arrested for the bank robberies?A. I did.Q. Okay. Putting everything together --A. It made a lot of sense to me.Q. Okay.A. You know.Q. Do you believe he's the one that robbed --A. I do. I do.
After he was convicted, Howell appealed, claiming that this testimony violated Rule 701. The Sixth Circuit agreed, holding that
Talbott's identification of Howell was not "rationally based on [her] perception[s]."...“The function of lay opinion testimony is to 'describ[e] something that the jurors could not otherwise experience for themselves by drawing upon the witness's sensory and experiential observations that were made as a first-hand witness to a particular event.'"...."When a witness has not identified the objective bases for [their] opinion, the proffered opinion obviously fails completely to meet the requirements of Rule 701, first because there is no way for the court to assess whether it is rationally based on the witness's perceptions, and second because the opinion does not help the jury but only tells it in conclusory fashion what it should find."...
Here, Talbott did not identify Howell based on any objective perceptions from during the robbery or the one alleged occasion when she had encountered Howell nearly three years before the robbery. She did not offer any descriptive nexus between her alleged prior encounter with Howell and what she perceived about the robber, such as "size," "weight," "manner of conduct," or voice....Talbott admitted she could not see the robber's identifying features. The bottom line is that Talbott “didn't know who [the robber] was” until she learned law enforcement had arrested Howell for the bank robberies....
Talbott's testimony was also not "helpful" to the jury....Talbott's testimony that Howell was the Finger bank robber was based on putting together what she saw on the news about the Reagan bank robbery, the fact that the Finger and Reagan bank robbers had the "same MO," and that Howell had been arrested for the bank robberies. The jury can do that much. "It is not 'helpful' when a witness, lay or expert, forms conclusions for a jury that the jurors are competent to reach on their own."...
"Nor is it helpful for a lay opinion witness to speculate or to repeat previously-admitted evidence that requires no explanation."...That is, "a lay witness may not explain to a jury what inferences to draw...because this crosses the line from evidence to argument."
That said, the court found this to be harmless error.