ARTICLE VII.

OPINIONS AND EXPERT TESTIMONY

     Rule 701  Opinion testimony by lay witnesses.  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 (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. [L 1980, c 164, pt of §1; gen ch 1985]

RULE 701 COMMENTARY

  This rule is identical with Fed. R. Evid. 701.  The rule retains the common-law requirement that lay opinion be based upon firsthand knowledge, McCormick §10, but liberalizes the traditional doctrine of "strict necessity," which allowed such testimony only where "all the facts cannot be placed before the jury with such clearness as to enable them to draw a correct inference...."  Tsuruoka v. Lukens, 32 H. 263, 264 (1932).  The present rule adopts in its place the more liberal "convenience" test, McCormick §11, allowing such testimony when it is "helpful" to the trier of fact in determining or clarifying facts in issue.

  The "strict necessity" doctrine has been construed to allow lay opinions concerning pain and suffering, see Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 113, 412 P.2d 669, 691 (1966).  Such a result is of course consistent with this rule.  The witness may be required to specify the facts upon which the opinion is based, see Sumner v. Jones, 22 H. 23 (1914).

  Several considerations support substitution of the "convenience" standard for the "strict necessity" test.  As the Advisory Committee's Note to Fed. R. Evid. 701 puts it: "[N]ecessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration."  The committee also cited the "practical impossibility" of distinguishing fact from opinion.

  The danger that such liberalization might open the door to factually unsupported, conjectural, or biased inferences is averted by the explicit requirement of firsthand knowledge, by implicit judicial discretion under the rule to exclude opinions for lack of "helpfulness," and by express judicial discretion under Rule 403 supra, to exclude because of the danger of prejudice, confusion, or misleading the jury.  The adversary system itself provides still another safeguard, allowing detailed cross-examination on the factual bases of such opinions.

Law Journals and Reviews

  Henderson v. Professional Coatings Corp.:  Narrowing Third-Party Liability in Automobile Accidents.  15 UH L. Rev. 353 (1993).

Case Notes

  Lay opinion evidence was properly admitted since it was based on firsthand knowledge and perception and may have been helpful to the jury.  73 H. 331, 832 P.2d 269 (1992).

  Harmless error where no reasonable possibility that any improper lay opinion testimony by officer contributed to defendant's DUI conviction.  80 H. 8, 904 P.2d 893 (1995).

  No abuse of discretion where trial court permitted detective to testify on whether pouches qualified as rigidly constructed containers or commercial gun cases as testimony was based on detective's personal knowledge of gun transporting container requirements, was based on detective's observation and perception of pouches in question, and was helpful by providing jury with opinion of a person--with experience in the field of gun transport--regarding the nature of the pouches.  93 H. 87, 997 P.2d 13 (2000).

  Where plaintiff's opinions as to the location of the restroom building and cart path were admissible as lay opinions under this rule supporting plaintiff's contention that a genuine issue of material fact existed as to whether defendant increased the risk of being struck by an errant shot due to its golf course design, trial court erred in granting summary judgment to defendant.  110 H. 367, 133 P.3d 796 (2006).

  Trial court properly permitted police officer to state opinion that traffic control sign was official.  9 H. App. 73, 823 P.2d 154 (1992).

  District court abused its discretion in admitting police officer's opinion testimony regarding defendant's field sobriety test results into evidence; admission of opinion testimony was harmless error.  9 H. App. 516, 852 P.2d 476 (1993).

  Trial court did not abuse its discretion in allowing witnesses to testify that defendant did not appear remorseful after learning of son's death.  10 H. App. 73, 861 P.2d 37 (1993).

  No abuse of discretion in excluding witnesses' opinions on bartender's actions at time of incident.  10 H. App. 331, 871 P.2d 1235 (1992).

  Where officer's opinion was not based solely on officer's personal knowledge but in significant part upon hearsay report of another officer, it was not admissible as lay opinion.  92 H. 98 (App.), 987 P.2d 996 (1999).

  Where plaintiff witnessed the car collision, reviewed the pertinent undisputed vehicle specifications and was thus able to form a rational opinion based on plaintiff's perception as to the defective nature of the air bag, and this opinion went to the determination of a material fact in issue, such evidence was enough to deny defendants summary judgment irrespective of expert testimony offered by defendant's expert.  92 H. 180 (App.), 989 P.2d 264 (1999).

  State failed to establish proper foundation for admission under this rule of officer's opinion that defendant failed field sobriety tests; trial court erred in concluding defendant was DUI under §291-4(a)(1) when it relied upon officer's opinion that defendant had "failed" the tests, rather than on defendant's actions or demeanor in performing the tests.  95 H. 409 (App.), 23 P.3d 744 (2001).

  Where witnesses' testimonies about (1) training and instruction of certified nurse's aides, (2) review of defendant care home operator's records and files, and (3) defendant's qualifications to operate and operation of a care home were based on witnesses’ observations and personal knowledge and not in the form of opinion or inference, they did not constitute impermissible lay opinion.  104 H. 387 (App.), 90 P.3d 1256 (2004).

  Circuit court erred in admitting federal agent's opinion testimony that revolver recovered from defendant's car had been recently fired, "within the same day, probably eight hours or so", which was particularly significant as it provided a direct link between the firing of the gun and victim's murder, where: (1) State did not set forth sufficient foundation for admission of this time-frame testimony as lay opinion; (2) the agent's opinion on the time frame in which defendant's gun had been fired required expert testimony; and (3) the State did not satisfy the foundational requirements for admission of the time-frame testimony as expert testimony.  122 H. 2 (App.), 222 P.3d 409 (2010).

  Cited:  62 H. 650, 618 P.2d 1144 (1980).