In 2000, Rule 701 of the Federal Rules of Evidence relating to
lay testimony was amended to include an additional subsection
which reads as follows: "and (c) not based on scientific,
technical or other specialized knowledge within the scope of Rule
702." Id. (emphasis added). The Advisory Committee Notes to
amended Rule 701 explain that the addition of subsection (c) was
an attempt "to eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through the
simple expedient of proffering an expert in lay witness
clothing." The notes further explain, however, that the
amendment was not intended to affect the "prototypical example[s]
of the type of evidence contemplated by the adoption of Rule 701
relat[ing] to the appearance of persons or things, identity, the
manner of conduct, competency of a person, degrees of light or
darkness, sound, size, weight, distance, and an endless number of
items that cannot be described factually in words apart from
inferences." Fed. R. Evid. 701 advisory committee's note (citing
Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1196 (3d
Cir. 1995)).
Since the adoption of the amendment to Rule 701, there have been
few cases which addressed this new amendment. However, one such
case is found at Tampa Bay Shipbuilding & Repair Co. v. Cedar
Shipping Co., Ltd., 320 F.3d 1213 (11th Cir. 2003). In that
case, an argument to exclude lay witness testimony was made. The
Court soundly rejected such exclusion. Its reasoning is
summarized in the following paragraphs.
"When the revision to Rule 701 was proposed, a memorandum from
the Advisory Committee on Evidence Rules was sent to the Chair of
the Standing Committee on Rules of Practice and Procedure which
clarified that the purpose of the amendment was not to exclude
the testimony of any lay witness who happened to also have
specialized knowledge- but instead to prevent surprise expert
witness testimony in NEW areas by having lay witnesses suddenly
and unexpectedly testify as experts. Basically, they sought to
reverse the trend which was occurring in the Asplundh (supra)
line of cases where, for example, a lay witness was unexpectedly
allowed to testify directly that a product was defective. See
Memorandum from the Advisory Committee on Evidence Rules, to the
Chair of the Standing Committee on Rules of Practice and
Procedure (May 1, 1999) (on file with the Administrative Office
of the United States Court) (the "Memo"). In the Memo, the Rules
Committee explained that it had published an original proposed
revision to Rule 701 and had issued the proposed rule for public
comment. As issued for public comment, Rule 701(c) provided that
lay opinion testimony could not be admitted if it was based on
"scientific, technical or other specialized knowledge." The
"within the scope of Rule 702" language was not in the proposed
rule. The Memo went on to explain that the "public comment on
the proposal was largely positive," but also noted that the major
source of objection came from the Department of Justice ("DOJ").
Specifically, the DOJ was concerned that the inclusion of the
term "specialized knowledge" would result in the conclusion that
a determination that anyone who testifies and who has specialized
knowledge in the area of their testimony, whether through
experience or professional learning, would be subject to the
expert disclosure rules."
"The Committee carefully considered the DOJ's objections and
determined that further revision was necessary in order to
clarify that the amendment was not intended to "prohibit lay
witness testimony on matters... that traditionally ha[d] been the
subject of lay opinions" - even for someone who had scientific,
technical or other specialized knowledge in the area of his
testimony. Id. In order to address the DOJ's concern, the
Committee added a further limitation after the words "specialized
knowledge." As revised, the Rule now "provide[d] that testimony
[could not] qualify under Rule 701 if . . . based on `scientific,
technical or other specialized knowledge within the scope of Rule
702.'" Id. (emphasis in original). Summarizing the above
revision, the Committee stated that the addition of "within the
scope of Rule 702" would emphasize that the new language was
designed to "protect against evasion of the Rule 702 reliability
requirements, without requiring parties to qualify as experts
those witnesses who traditionally and properly have been
considered as providing lay witness testimony." Id. The
amendment was intended to reverse the Asplundh line of cases and
not to create a new requirement for expert witness disclosures
for all persons with specialized knowledge. For example,
treating physicians disclosed as "lay witnesses" continue to be
exempt from the disclosure requirements for experts under the
Federal Rules, even though they have specialized knowledge. Cf.
Davoll v. Webb, 194 F.3d 1116, 45 Fed.R.Serv.3d 441 (10th Cir.
1999)"
The Federal Rules of Evidence Rule 701 - "Opinions by Lay
Witnesses" includes the Advisory Committee's notes to the 2000
Amendments. The last paragraph of that 2000 commentary reads:
"The amendment incorporates the distinctions set forth in State
v. Brown, 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 'special knowledge'. In Brown, the court
declared that the distinction between lay and expert witness
testimony is that lay testimony 'results from a process of
reasoning familiar in everyday life,' while expert testimony
'results from a process of reasoning which can be mastered only
by specialists in the field'. The court in Brown noted that a
lay witness with experience could testify that a substance
appeared to be blood, but that a witness would have to qualify as
an expert before he could testify that bruising around the eyes
is indicative of skull trauma. That is the kind of distinction
made by the amendment to this Rule."
Lay witnesses - as a result - have been allowed to testify (1)
that a footprint in snow looked like someone had slipped,
National Life & Accident v. Follett, 168 Tenn. 647, 80 S.W.2d 92
(1935), or (2) that a substance appeared to be blood. State v.
Mabon, 648 S.W.2d 271, 274 (Tenn.Crim.App. 1982), (3) that
defendant's feed mixture was the cause of sickness in the heard.
1954), (4) that a floor was slippery, Allen v. Matson Nav. Co.,
255 F.2d 273 (9th Cir. (Cal.) 1958); (5) that an observed
individual was intoxicated. Gaynor v. Atlantic Greyhound Corp.,
183 F.2d 482 (3rd Cir. (Pa.) 1950); (6) that a reddish burn mark
consistent with those left by a stun gun, U.S. v. Myers, 972 F.2d
1566 (11th Cir. (Ga.) 1992), rehearing denied, 980 F.2d 1449,
cert. denied 507 U.S. 1017 and so forth.
"[P]erceptions based upon industry experience is a sufficient
foundation for lay opinion testimony." Buckman v. Bombardier
Corp., 893 F.Supp. 547 (E.D.N.C. 1995) [Employees of manufacturer
of recreational watercraft could offer opinions based on their
own experiences as to operational characteristics, engineering,
and effects of lack of maintenance on watercraft.] Burlington
Northern R. Co. v. Nebraska, 802 F.2d 994 (8th Cir. 1986); Farner
v. Paccar, Inc., 562 F.2d 518, 520 (8th Cir. 1977) [Truck
operator with extensive experience in the industry could testify
regarding the proper use of safety chains]; Gravely v. Providence
Partnership, 549 F.2d 958, 961 (4th Cir. 1977) [Staircase
company's president could testify regarding safety considerations
of conventional versus spiral staircases]
Lay witness in federal court proceeding is permitted to offer
opinion on basis of relevant historical or narrative facts that
witness has perceived. Modern trend favors admission of lay
opinion testimony provided that it is well founded on personal
knowledge and susceptible to specific cross-examination. Teen-Ed, Inc. v. Kimball Intern., Inc., 620 F.2d 399 (3rd Cir. (N.J.)
1980); Buckman v. Bombardier Corp., 893 F.Supp. 547 (E.D.N.C.
1995).
Teen-Ed, Inc. v. Kimball Intern., Inc., 620 F.2d 399 at 404 (3rd
Cir. (N.J.) 1980) "Testifying as a layman, [a witness is] more
restricted than if he were proffering opinion evidence as an
expert. See, Fed.R.Evid. 702 and 703. the essential
difference,... is that a qualified expert may... not only testify
from 'facts or date... perceived by' him, but also from what is
'made known to him at or before the hearing.'"
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