Thursday, June 30th, 2016

When Opinion Testimony Is Proper Lay Testimony

The Circuit issued no relevant published decisions today and only two short summary orders, one of which (marginally) bears wider interest. In United States v. Mobutu Thornhill, Docket No. 15-2147-cr, the Circuit (Jacobs, Calabresi, Raggi) affirmed Thornhill’s conviction, following a jury trial, for being a felon in possession of a firearm. The sole issue discussed in the summary order is Thornhill’s argument (not made below and thus reviewed here for plain error) that the trial court “improperly allowed a lay witness to offer expert testimony concerning the identification of the weapon[,] in violation of Rule 701 of the Federal Rules of Evidence.” Order at 1.

The challenged testimony was by a lay eyewitness who told the jury that “he saw the defendant with what appeared to him to be a ‘[.]22 long rifle target pistol.’” (NB: The Internet informs that this is a target pistol that uses a .22 caliber rim-fired cartridge (often referred to as a “.22 LR” bullet). This low-cost, readily-available ammunition has minimal recoil and is frequently used for recreational shooting and firearms training). The testimony was based on the witness’s first-hand observation of Thornhill, coupled with the witness’s “previous work as a regiment weapons officer for an army unit in the Jamaican Defense Force,” during which he apparently saw such weapons.

On these facts, the Court ruled that this was proper lay testimony that did not require qualification as an expert under Rule 702, “[b]ecause this testimony was based on [the witness’s] personal observations informed by his personal life experience.” Order at 2. In support, the Court cited the advisory notes to Rule 701, which state that a “lay witness could testify that [a] substance [] appeared to be [a] narcotic based on [his or her] personal life experience,” as well as its earlier decision in United States v. Brewer, 36 F.3d 266, 271 (2d Cir. 1994), which “approvingly referenc[ed] [a] lay witness describing [a] fire arm as [a] ‘machine gun’.” Id.

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Categories: Rule 701
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