16 Moreover, judges trying to distinguish between fact and opinion were meeting with disaster as they found the basic assumption underlying the supposed distinction between the two an illusion. Instead of notion or guess, opinion was becoming synonymous with inference or conclusion. 15 From medieval law to early jury trials to modern litigation, the one constant theme was that lay witnesses must have personal knowledge of matters about which they testify.Įven as lay opinion evidence was theoretically being barred, the entire definition of opinion was changing. Boehm, 13 “it is mere opinion and not evidence.” It should be noted that Lord Mansfield was attacking opinion evidence because the early English definition of opinion meant “lack of grounds” or “notion,” 14 and his famous statement “it is mere opinion and not evidence” was understood to condemn testimony that was not based on personal knowledge. This article explores the history of opinion evidence, and how that evidence became grafted onto the objection of “invading the province of the jury.” History of Lay Opinion EvidenceĪs early as 1766, Lord Mansfield, chief justice of the King’s Bench, and major architect of Anglo-American common law, institutionalized the traditional criticism of opinion evidence when he announced in Carter v. (The jury instruction for lay evidence, Jury Instruction 201, is seldom included in the standard criminal jury packet.) Many attorneys do not use lay opinion evidence, perhaps because they fear that the court will reject this type of evidence because of objections of “speculation,” “opinion,” or “invading the province of the jury.” Indeed, frustrated prosecutors are routinely denied effective direct examinations when they ask witnesses to draw conclusions from what they have perceived. Wisconsin lawyers, however, are not using lay opinion evidence. 12 Wisconsin statutes and case law permit a litigator, armed with lay opinion evidence, to examine a witness about direct knowledge and request conclusions based on that knowledge. 3 Thus, a lay witness may give an opinion based just on his or her perception of such things as speed, 4 time, 5 bloodstains, 6 intoxication, 7 sanity, 8 the appearance of people or conditions, 9 identity, 10 mental condition, 11 the manner of conduct, lightness, darkness, sound, size, weight, and distance – an endless number of items that cannot be described factually in words apart from inferences. section 907.01 (part of Wisconsin’s Rules of Evidence), is to clarify that any witness, including a nonexpert, can testify in the form of an opinion or inference. 2 The entire purpose of this “lay opinion rule,” governed by Wis. 1 A lay (nonexpert) witness testifies because that witness has direct knowledge of something that is now in dispute that testimony can be in the form of an opinion or inference if that opinion is rationally based, helpful for understanding, and relevant. An expert who is qualified by “knowledge, skill, experience, training or education” may appear and testify if that specialized knowledge will help the trier of fact in understanding or determining an issue. BackgroundĪny testifying witness, whether in federal or state court, in a criminal or civil action, gives either lay or expert testimony. This article gives a fresh look at lay opinion evidence and its effectiveness in trial advocacy to help Wisconsin trial attorneys use, and courts more readily accept, this potential type of testimony as the legislature intended. Lawyers who fear that lay opinion evidence will call forth objections, such as “invading the province of the jury,” may depend on other types of evidence to present testimony. Such testimony is permitted even if that testimony encompasses the ultimate issue of the case. Isconsin lawyers are not using lay opinion evidence at trial even though witnesses may testify to their direct knowledge in the form of opinions to the jury.
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