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.



 



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.



  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.



  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.



  Where defendant's credibility was the linchpin of defendant's
defense of duress and choice of evils, the prosecution's failure to comply with
the foundational requirements of this rule deprived the defendant of a fair
opportunity to respond to witness's testimony impeaching defendant's
credibility; thus, there was a strong possibility that the erroneous admission
of witness's testimony contributed to defendant's conviction and was not
harmless error.  101 H. 269, 67 P.3d 768.



  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.



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



  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.



  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.



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



  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.



  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.



  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.



  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.



  Cited:  62 H. 650, 618 P.2d 1144.