2d Circuit Tightens Reins on Lay Opinion Testimony

Litigants sometimes hope to avoid Daubert challenges by characterizing their witnesses' testimony as lay rather than expert opinion. To be sure, the federal lay opinion rule, Fed. R. Evid. 701, was amended in 2000 with the intent of "eliminat[ing] 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." But some courts have remained receptive to the "lay opinion" gambit in borderline cases, if reasonable persons might differ over whether the witness has necessarily relied on specialized knowledge in forming opinions based on facts within the witness's personal knowledge.

The Second Circuit has issued an opinion tightening the reins, in a case where a law enforcement agent testified, over defense objections, to his opinion that a defendant was a partner in a drug operation. See United States v. Garcia, No. 03-1407 (2d Cir. June 21, 2005) (Calabresi, B.D. Parker, & Raggi, JJ.). Rule 701 imposes three requirements, said the panel, which must all be satisfied before lay opinion is admissible. First, the opinion must be based on the witness's personal perceptions (as opposed, e.g., to hearsay). Second, it must be helpful to the trier of fact. Third, it must be the product of reasoning processes familiar to the average person in everyday life. If the witness's reasoning process rests "in any way" on scientific, technical, or other specialized knowledge, said the panel, then the admissibility of the witness's opinion must be determined under Rule 702's standards for expert testimony. The burden of showing these requirements to be satisfied rests on the proponent, and the agent's testimony in Garcia failed all three requirements, according to the Second Circuit.

Will this decision deter prosecutors from offering similar testimony in future cases? Not necessarily. The Garcia panel also held that the error was harmless.