{"id":3787,"date":"2024-06-02T15:16:30","date_gmt":"2024-06-02T15:16:30","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3787"},"modified":"2024-06-04T14:17:48","modified_gmt":"2024-06-04T14:17:48","slug":"is-the-opinion-lay-or-expert-the-superior-court-has-an-opinion-maybe-a-wrong-one","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2024\/06\/02\/is-the-opinion-lay-or-expert-the-superior-court-has-an-opinion-maybe-a-wrong-one\/","title":{"rendered":"Is The Opinion \u201cLay\u201d or \u201cExpert?\u201d &#8212; The Superior Court Has An Opinion (Maybe A Wrong One)"},"content":{"rendered":"<p>Lay opinion testimony is tolerated because, frankly, it is hard to find the line between fact and opinion (\u201cshe is tall,\u201d \u201cthey appeared drunk,\u201d \u201cthe car was way over the speed limit\u201d) and because lay witnesses should be comfortable speaking in normal, conversational, easily-understood terms.\u00a0 To ensure there is a foundation for the opinion rather than mere speculation, there is the testing device of cross-examination.<\/p>\n<p>But lay witnesses may not cross a line and give testimony that is \u201cbased on scientific, technical, or other specialized knowledge within the scope of Rule 702.\u201d Pa.R.Evid. 701.\u00a0 That\u2019s for experts, and with expert testimony comes discovery obligations such as reports and CVs.<\/p>\n<p>The line is ill-defined.\u00a0 And the language of 701 itself is blurry \u2013 when it says \u201cspecialized knowledge <em>within the scope of Rule 702<\/em>\u201d does that mean that all specialized knowledge is within 702 or there are types of specialized knowledge, some covered by 702 and others not?\u00a0 The answer is probably the latter, since some recognized forms of lay opinion have to be \u201cspecialized.\u201d\u00a0 When a witness says \u201cJules Epstein wrote that note\u201d their claim is \u201cspecialized\u201d to the extent that they, and not the jury, have \u201cspecialized\u201d familiarity based on receiving mail from me or watching me write on the board in a lecture hall.<\/p>\n<p>So where is that line?\u00a0 In a split decision, the Superior Court found it proper to permit the following from a State Trooper investigating impaired driving:<\/p>\n<p style=\"padding-left: 40px\">Based on the totality of everything I saw, from [Appellant&#8217;s] driving, to my contact with him, to my testing with him, I was under the impression that he was not safe to drive a vehicle and that he was under the &#8211; he was being affected by some sort of illegal substance.<\/p>\n<p>Commonwealth v. Nestor, 460 EDA 2023 (April 10, 2024).\u00a0 The trooper added another factor, as described by the majority.\u00a0 \u201cTrooper Zimmerman opined that Appellant was impaired by a stimulant.\u201d<\/p>\n<p>There are really three opinions here:<\/p>\n<ul>\n<li>Nestor was not safe to drive<\/li>\n<li>Nestor was \u201caffected by some sort of illegal substance\u201d<\/li>\n<li>Nestor had used and was impaired by \u201ca stimulant\u201d<\/li>\n<\/ul>\n<p>Were this a test and we asked people to vote as to whether any is a lay opinion, I suspect that everyone would find the first opinion to be prototypic and unobjectionable but that the vote would be split on the latter two, with most concern being voiced about \u201cstimulant.\u201d\u00a0 But to the Nestor majority, all three passed muster.<\/p>\n<p>How did the Court get there?\u00a0 In part by over-reading federal precedent; in part by misapprehending Federal Rule of Evidence 701; and in part by failing to address controlling Pennsylvania law.<\/p>\n<p>Let\u2019s start with the last, as it is closest to home.\u00a0 The most significant decision seeking to draw the line between where lay opinion ends and expert opinion begins is Commonwealth v. Jones, 663 Pa. 20 (2020), a case unmentioned in Nestor.\u00a0 In Jones the opinion witness was a Detective, the testimony was from \u201cspecialized\u201d knowledge addressing how victims of sexual violence respond behaviorally and the Court found it improper to be offered as a lay witness.<\/p>\n<p style=\"padding-left: 40px\">Here, Detective Holzwarth primarily functioned as a fact witness but was also called upon to offer general opinion testimony concerning whether or not it was common for child victims of sexual assault to have trouble remembering dates and details of ongoing sexual assaults. Detective Holtzwarth was asked to provide insights gained through specialized occupational training and experience not within the average layperson&#8217;s knowledge base as required by the plain language of Rule 702(a). Detective Holzwarth called upon the wealth of his knowledge and training as a detective with extensive experience investigating sexual assaults and made connections for the jury based on that specialized knowledge\u2026<\/p>\n<p style=\"padding-left: 40px\">Accordingly, we hold that testimony from a law enforcement officer concerning child victims&#8217; typical behaviors and responses to sexual abuse, when based on that officer&#8217;s training and experience, falls within the realm of expert testimony.<\/p>\n<p>Jones, 663 Pa. at 36.\u00a0 It is hard to find a difference between the Detective\u2019s testimony and that of the trooper in Nestor.<\/p>\n<p>The second error is in over-reading federal precedent in analyzing specialized knowledge lay opinion testimony.\u00a0 Here is what the Nestor majority wrote:<\/p>\n<p style=\"padding-left: 40px\">As the Third Circuit has stated, &#8220;the reliability of lay opinion testimony should be assessed in light of the witness&#8217;s relevant specialized knowledge and experience.&#8221; United States v. Savage, 970 F.3d 217, 286 (3d Cir. 2020). Further, in distinguishing between specialized lay witness testimony under F.R.E. 701 and expert testimony under F.R.E. 702, the Savage Court noted:<\/p>\n<p style=\"padding-left: 80px\">[w]hen a lay witness has particularized knowledge by virtue of her experience, she may testify\u2014even if the subject matter is specialized or technical\u2014because the testimony is based on the layperson&#8217;s personal knowledge rather than on specialized knowledge within the scope of Rule 702. Thus, as long as the technical components of the testimony are based on the lay witness&#8217;s personal knowledge, such testimony is usually permissible under Rule 701.<\/p>\n<p style=\"padding-left: 40px\">Id. (quoting United States v. Fulton, 837 F.3d 281, 301 (3d Cir. 2016)) (emphasis added; footnote, paragraph break and quotation marks omitted).<\/p>\n<p>Commonwealth v. Nestor, 2024 Pa. Super. LEXIS 130, *12.\u00a0 What is omitted is the type of personal experience Savage was addressing \u2013 an Agent testifying as to the meaning of coded words in drug or gang transactions.\u00a0 Why is that different?\u00a0 Because that knowledge is gained directly in the undercover investigation and thus personally experienced and closer to factual testimony.<\/p>\n<p>The final error is the broader misapprehension of\u00a0 FRE 701, which the Nestor majority looks to for guidance.\u00a0 When amended in 2000 to make clear that expert opinions could not be introduced as lay opinion, the Comment included the following:<\/p>\n<p style=\"padding-left: 40px\">The amendment incorporates the distinctions set forth in <em>State v. Brown<\/em>, 836 S.W.2d 530, 549 (1992), a case involving former Tennessee Rule of Evidence 701, a rule that precluded lay witness testimony based on \u201cspecial knowledge.\u201d In <em>Brown<\/em>, the court declared that the distinction between lay and expert witness testimony is that lay testimony \u201cresults from a process of reasoning familiar in everyday life,\u201d while expert testimony \u201cresults from a process of reasoning which can be mastered only by specialists in the field.\u201d<\/p>\n<p>Rule 701. F.R.Evid., Committee Notes on Rules \u2013 2000 Amendment,<\/p>\n<p>That distinction is well-reasoned and embraced in scholarly commentary.\u00a0 <em>See<\/em> Imwinkelried,\u00a0 DISTINGUISHING LAY FROM EXPERT OPINION: THE NEED TO FOCUS ON THE EPISTEMOLOGICAL DIFFERENCES BETWEEN THE REASONING PROCESSES USED BY LAY AND EXPERT WITNESSES, 68 SMU L. Rev. 73 (Winter, 2015):<\/p>\n<p style=\"padding-left: 40px\">Although a lay witness must rely on a generalization resting exclusively or primarily on his or her personal knowledge, an expert witness is likely to draw on a wide range of sources, including much hearsay\u2013lectures by his [or her] teachers, statements in textbooks, reports of experiments and experiences of others in the same field. \u00a0In other words, in formulating the generalization, the expert relies on vicarious as well as personal experience.<\/p>\n<p>68 SMU L. Rev. at 88-89 (internal quotations and footnotes omitted).\u00a0 In other words, where the witness relies on anything more than direct hands-on exposure and has to reason from external sources of knowledge, that puts the witness into the expert category.<\/p>\n<p>There are real concerns about allowing a purported lay witness to give what is expert opinion testimony.\u00a0 As explained by Professor Jason Chin and colleagues, \u201c[t]he first hazard is unconscious bias and the fact that lay witnesses need not demonstrate they relied on a methodology to control that bias. A lack of methodology would not be so problematic if not for the second hazard, a specious nexus between the witness\u2019s authority and his or her evidence\u2026\u201d\u00a0 Chin, Tomiska and Li, DRAWING THE LINE BETWEEN LAY AND EXPERT OPINION EVIDENCE, 63 McGill L.J. 89, 105 (2017).<\/p>\n<p>Where does the trooper in Nestor fit?\u00a0 The trooper testified to training received in the academy, and, once on the force, in \u201cARIDE tests, Advanced Roadside Impaired Driving Enforcement\u201d which includes \u201cinstruction about common drugs that are used and abused, indicators that different drugs can show.\u201d The trooper then claimed that \u201cmy job brings me around lots of different situations with impaired people. In my\u00a0 experience, the way he was acting is the way that someone that&#8217;s impaired by some sort of stimulant acts.\u201d<\/p>\n<p>So what is wrong here?\u00a0 First, the training and the exposure seem inseparable; and, second, there is no elaboration of the purported claim of first-hand exposure \u2013 how many instances and how the officer confirmed the suspects were using stimulants.\u00a0 Perhaps most importantly, if the exposure to people on stimulants was obtained \u2018on the job,\u2019 that should still be considered expert testimony.<\/p>\n<p>Why? Because under both the Federal and Pennsylvania rules, if the specialized knowledge is \u201cbeyond that possessed by the average layperson\u201d [the Pennsylvania formulation] or \u201cwill help the trier of fact to understand the evidence or to determine a fact in issue[,]\u201d [the Federal test], the person must be an expert to provide it.\u00a0 That is the case here.<\/p>\n<p>Absent a conclusive showing that what the Trooper said was based solely on personal exposure\/events and with no reliance on training or on-the-job experience, the testimony should have been viewed as expert.\u00a0 As importantly, the Superior Court majority should have recognized and articulated the difference.<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Lay opinion testimony is tolerated because, frankly, it is hard to find the line between fact and opinion (\u201cshe is tall,\u201d \u201cthey appeared drunk,\u201d \u201cthe car was way over the speed limit\u201d) and because lay witnesses should be comfortable speaking in normal, conversational, easily-understood terms.\u00a0 To ensure there is a foundation for the opinion rather<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[330],"class_list":["post-3787","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.2 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Is The Opinion \u201cLay\u201d or \u201cExpert?\u201d - The Superior Court Has An Opinion (Maybe A Wrong One) - Advocacy and Evidence Resources<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/law.temple.edu\/aer\/2024\/06\/02\/is-the-opinion-lay-or-expert-the-superior-court-has-an-opinion-maybe-a-wrong-one\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Is The Opinion \u201cLay\u201d or \u201cExpert?\u201d - The Superior Court Has An Opinion (Maybe A Wrong One) - Advocacy and Evidence Resources\" \/>\n<meta property=\"og:description\" content=\"Lay opinion testimony is tolerated because, frankly, it is hard to find the line between fact and opinion (\u201cshe is tall,\u201d \u201cthey appeared drunk,\u201d \u201cthe car was way over the speed limit\u201d) and because lay witnesses should be comfortable speaking in normal, conversational, easily-understood terms.\u00a0 To ensure there is a foundation for the opinion rather\" \/>\n<meta property=\"og:url\" content=\"https:\/\/law.temple.edu\/aer\/2024\/06\/02\/is-the-opinion-lay-or-expert-the-superior-court-has-an-opinion-maybe-a-wrong-one\/\" \/>\n<meta property=\"og:site_name\" content=\"Advocacy and Evidence Resources\" \/>\n<meta property=\"article:published_time\" content=\"2024-06-02T15:16:30+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2024-06-04T14:17:48+00:00\" \/>\n<meta name=\"author\" content=\"Jules M Epstein (hehimhis)\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Jules M Epstein (hehimhis)\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"7 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/law.temple.edu\/aer\/2024\/06\/02\/is-the-opinion-lay-or-expert-the-superior-court-has-an-opinion-maybe-a-wrong-one\/#article\",\"isPartOf\":{\"@id\":\"https:\/\/law.temple.edu\/aer\/2024\/06\/02\/is-the-opinion-lay-or-expert-the-superior-court-has-an-opinion-maybe-a-wrong-one\/\"},\"author\":{\"name\":\"Jules M Epstein (hehimhis)\",\"@id\":\"https:\/\/law.temple.edu\/aer\/#\/schema\/person\/ebe47f403ad14e2c5faec834f2d8472e\"},\"headline\":\"Is The Opinion \u201cLay\u201d or \u201cExpert?\u201d &#8212; 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