Out of Bounds

Why Federal Rule of Evidence 701 Lay Opinion Testimony Needs to be Restricted to Testimony Based on Personal First-Hand Perception

Federal Courts of Appeal have long been divided over whether Federal Rule of Evidence 701 allows the admission of lay witness opinions not based on first-hand perception. This circuit split has recently been deepened by several circuit court cases allowing the admission of evidence based on the “opinions” of non-expert, non-percipient witnesses.As law enforcement pursues the “War on Drugs,” officers are increasingly allowed to testify under the umbrella of Rule 701 as quasi-expert witnesses regarding how drug dealers operate and how to translate coded conversations. This Note examines how the government has been able to overstep the bounds of Rule 701 in order to secure convictions through the use of non-percipient, non-expert lay opinion testimony from law enforcement agents. In addition, this Note analyzes the existing circuit split over this issue, particularly in cases dealing with law enforcement interpretation of recorded conversations in drug and terrorism cases.In order to ensure that lay opinion testimony does not usurp the fact-finding function of the jury, this Note ultimately recommends that all courts should follow the approach of the circuits currently holding that lay opinion testimony is inadmissible unless the witness personally participated in or contemporaneously observed the subject of their testimony.

The full text of this Note is available to download as a PDF.