The Value of Evidentiary Rule 701(c)

Can a witness, knowledgeable in something specific that is also scientific or technical, but not knowing enough to qualify as an expert witness, testify to this as a lay opinion?  In the year 2000, the Supreme Court answer for the federal court system is “no.”[1]  However, twenty-three states have decided for themselves not to adopt this rule.[2]  This Blog will dive into the history of that decision, look into a sample set of cases that deal with knowledgeable lay witnesses, and analyze the sample cases through the lenses of the current Federal Rule of Evidence 701.

A.         History of Lay Witness Opinion Testimony

At common law, lay witnesses were not allowed to provide any opinions and were restricted to their experiences: what “they had seen, heard, felt, smelled, tasted, or done.[3]”  However, this harsh distinction was overly prohibitive.  Judge Learned Hand was a vocal critic of the practice:

Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the "facts" in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose.[4]

Eventually, complaints like this won the day (century?) over Rule 701 when the rules of evidence were codified in 1975.[5]  The 1975 version is largely similar to what still exists in Rule 701 subsections (a) and (b) but lacked in subsection (c).[6]  It allowed lay witness to provide opinion testimony when it was rationally based on a witness’s perception and helpful to understanding their testimony or in determining a fact in issue.[7]

In order to combat over-permissiveness, the Supreme Court adopted Rule 701(c) in an amendment in the year 2000.  Since then, twenty-six of the fifty states, all territories represented in circuit courts, and the District of Columbia have adopted this change.[8]  However, that means nearly half of states have refused to adopt this rule for themselves.

B.          Test Cases

This Section will look at three cases.  The first case is one that the Committee on Rules cites as an example for where lay opinion testimony went too far and thus justifies the change of the rule.  The latter two are circumstances in which knowledgeable lay witness testimony was provided and allowed in contexts outside of the modern rule.

1.      Asplundh: an abuse of lay witness opinion testimony.

In Asplundh Manufacturing Division v. Benton Harbor Engineering,[9] a man was killed when the aerial lift he was working on failed.[10]  His estate had brought a successful wrongful death claim against the manufacturer of the lift, Asplundh Tree Expert Co.[11]  They, in turn, sued Benton Harbor Engineering for contribution, claiming a part they supplied was defective.[12] 

Asplundh called as lay witness, Michael Jones, who managed the fleet of vehicles to which the failed aerial lift belonged.[13]  Jones and his employees took apart and inspected the faulty boom assembly after the accident, and he testified to its condition.[14]  Going further than what he saw, he provided opinion on as to a faulty design and declared that he knows “how to make hydraulic cylinders.”[15]  The Appeals Court, however, noted that nothing on the record suggested he knew how to make hydraulic cylinders—he had only one year of college studies, never took a course in metallurgy or material sciences, never independently studied materials, and never had technical experience in manufacturing other than managing others.[16]  Jones’s opinions as to the quality and design of the hydraulic cylinder and its subparts was dubious.  As such, the Thirs Circuit decided that in order for the lay opinion to meet the rational basis or helpfulness requirement, there would need to be evidence on the record that established Jones’s expertise in this field.[17]

2.      Soden and Davis: knowledgeable lay witnesses allowed.

In Soden v. Freightliner Corp.,[18] a truck driver was killed when his truck was struck, rolled over, and caught fire.[19]  The plaintiff’s theory against Freightliner was this: if the vehicle, rolled over, a bracket for a step into the cab would pierce the fuel tank it rested on, which would then cause diesel to spill onto nearby hot engine components and ignite.[20]  They claimed such a design is inherently defective.[21]  To make this case, they brought in as a lay witness Robert Lasere, the service manager of the company for whom the deceased worked.[22]

Lasere testified that he had seen the results of this accident and two or three others that involved roll overs or jackknifes where fuel tanks had been punctured at the location of the step bracket (although this is the only that led to a fire).[23]  For this reason, his opinion was that the design was dangerous, and had previosuly taken action by having all the Freightliner’s in the fleet to have the pointed ends of the brackets sawed off.[24]  This was backed up by Lasere’s eighteen years of service where he was directly in charge of repairs and maintenance of 500 trucks, including many Freightliners.[25]

The lower court allowed this testimony and this was affirmed by the Fifth Circuit.[26]  Specifically, they recognized that although Lasere did not witnessany of the accidents firsthand, all the information he based his opinion on was based on his personal knowledge.[27]  The Fifth Circuit also noted, though, that some of his testimony “might have better been given by one more formally an expert” but allowed it because of his basis in his observation and experience and dubbed him a “practical expert.”[28]

More recently, the Supreme Court of Oregon reasoned a lay witness could testify with a medical opinion in State v. Davis.[29]  In this sad case, a child was killed by abuse, but the abuser was unclear.[30]  The prosecution argued that fatal injury happened a day or two prior when the victim was in the defendant’s care, while the defense was suggesting a brain injury happened four days before the child’s death when she was in the care of her mother (and others).[31]  As such, the defense relied on the testimony of Nurse Payne, who stated that she recognized symptoms of brain damage four days before the child died.[32]

Payne had testified that when she say the victim four days prior to her death, her “instant thought by looking at [the victim] is, Oh my gosh, there’s [Payne’s daughter] when she was young, when she had pressure on the brain or else she was dehydrated.[33]”  She also testified as to some of the specific symptoms she recognized.[34]  Payne qualified her opinion with the fact that her own daughter had suffered brain damage and had fifteen surgeries in treatment, in addition to being a registered nurse.[35]

The lower court had not allowed this testimony on the record, which was affirmed by the appeals court.[36]  Here, the Supreme Court pf Oregon applied Oregon’s evidence code (OEC) 701, which follows FRE 701 excluding the 2000 Amendment.  As such, the court simply asked if the opinion was rationally based on the witness’s perception and personal knowledge and that opinion be helpful to the jury.[37]  Although they broke it into two parts, this post will use three by breaking up the first part.  As a lay witness, the opinion must be rationally based on the perception of the witness, which means that (1) the lay witness personal personally observed the thing they have an opinion on and (2) has personal knowledge of the matter so that they can form an opinion.[38]  The third part is that the lay witness’s opinion must be helpful, meaning that it makes the jury more likely to understand the testimony of the witness or help them make a determination of a fact at issue.[39]

The court had previously explained that: “[a]n essential difference between opinion testimony by a lay witness and an expert witness is that the lay witness is restricted to his personal perceptions while an expert witness may also testify from facts made known to him at or before the hearing.”[40]  In finding that these elements were met here, the court reversed the lower court’s rulings.[41].

C.         Application of Rule 701 (c) to Prevent Abuse of Rule 701

This Section will analyze the outcome of the three cases above if instead they were subject to Rule 701(c).  This (hopefully) will demonstrate how although the differences in the rules may be splitting hairs, it can result in meaningful difference.

The main advantage of Rule 701(c) is that it provides a brighter line than that which comes from the case law of the previous twenty-five years.  The provision in 701(c) dictates a much clearer limitation because it taps into much older case law by terminating the reach of lay witness testimony to where experts dwell in scientific, technical, or otherwise specialized knowledge.[42]  As such, it is easy to speculate how the cases above would turn out had Rule 701(c) existed or was in place in the jurisdiction when the case was being decided.

In Asplundh, the questionable testimony came from Micheal Jones, who opined to a deficient design of a hydraulic cylinder.[43]  As the Third Circuit pointed out, whether product design was defective or whether certain factors such product defect caused an accident would ordinarily be for an expert witness to testify to under Rule 701.[44]  As such, the court would have applied the same outcome and would have rejected the testimony.

In Sodden, similar logic would apply.  The testimony here was whether defective design on some brackets that held up a stair to the cab was puncturing the gas tank when the vehicle rolled.[45]  The Fifth Circuit here recognized that the witness was a “practical expert”, but the testimony “did constitute an opinion which might have better given by one more formally an expert.[46]”  As such, if Rule 701(c) was around, it is likely that this testimony would have been rejected on appeal.

In Davis, the issue was whether Nurse Payne’s statement about her own daughter looking like the victim when her daughter was suffering from brain damage or was dehydrated was admissible lay witness testimony.[47]  This opinion was not sitting in lieu of a medical diagnosis and as a registered nurse, Nurse Payne is not qualified to do that in the state of Oregon.[48]  The Oregon court specifically stated that “only an expert could make that medical diagnosis.[49]”  Instead, the opinion was used to indicate her impression which supported the testimony of a separate expert witness’s testimony.[50]  The gap left behind from her redacted testimony was also prejudicial as it simply suggested that the victim looked dehydrated.[51]  These comments suggest that the court would likely try to find away to maintain the same ruling regardless of Rule 701(c).  However, it is difficult to imagine how the plain text of 701(c) would allow this evidence in, as Nurse Payne’s opinion is unambiguously coming from “specialized knowledge.”  The court could have gone either way on this had they adopted 701(c). 

D.         Author’s Opinion is that 701(c) is Generally Unnecessary or Unhelpful.

It is the opinion of this Author that all three cases were decided correctly—that Jones’s testimony in Asplundh was correctly denied while Lasere’s in Sodden and Payne’s in Davis was correcctly admitted. 

Witness Jones reads as if he were overly confident; many of his statements were conclusory without any basis for his expertise.  He reads as if he was something of a Brent Norwalk[52] of trucks and engineering.  As such, his opinions offer little probative value but could be substantially prejudicial to the jury.  This is nicely contrasted with witness Lasere as Mr. Lasere brought actual data, albeit limited given the infrequency of severe crashes and the size of the fleet Lasere manages.[53]  Not only did Lasere have data, but he took steps to remedy the problem within his fleet,[54] which demonstrates that the requisite knowledge is not outside his capabilities.  Given this, the probatory value was much higher and the prejudicial value much less compared to Jones’s testimony and allowing on the record is valuable to the jury.

The testimony in Davis should not be forced to ride the line either.  The statements made by Nurse Payne regarding how the victim looked were based on many points of data, most of which she probably did not even realize she was noticing, that caused the victim to look like her daughter did when her daughter had pressure on the brain and was dehydrated.  In asking her to instead provide some of the details that led her to her conclusion, she may have engaged in memory bias where the conclusion which she remembers clearly causes her to invent details to match.[55]  As such, the likely most correct part of Nurse Payne’s testimony is her opinion, and therefore, it should be admissible.  Putting the testimony on the line with 701(c) does not operate in the interest of justice.

The case law solutions to the issue have worked well.  Although there are certainly cases that are not examined in this paper that will demonstrate their failure, three things should be remembered in weighing these solutions against the current, popular rule.  First, these evidentiary issues are brought about in adversarial court cases, where the side who could face a faux expert witness has every chance to impeach them and their testimony.  Second, giving more opportunities to get knowledgeable lay witness testimony should tend to benefit less well funded litigants as they are less likely to be able to afford expensive experts.  Third, a Rule should be considered a failure when it would change the result of case law it is built of off when it was supposed to support said case law.  Here, the Committee cited Asplundh in support, which in turn supported Soden.  However, this rule overturns the result in Soden, which indicates it is a bad representation of the case law the Committee claimed to be codifying in the rule.

E.          Conclusion

Whether or not a knowledgeable lay person may provide an opinion that terries into the realm of 702 is largely dependent on whether the jurisdiction has adopted Rule 701(c) or its equivalent.  While it is clear that there needs to be some bounds on 701 as it is prone to abuse, the courts have managed to walk a fair line in the absence of 701(c).  It is this Author’s opinion that the twenty-four jurisdictions who have not yet adopted the federal rule are better served by relying on their on discretion.

Written By: Gregory Rubelmann

[1] See Fed. R. Evid. 701 (c), Committee Notes on Rules—2000 Amendment (Advisory Committee on Evidence Rules) (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28a-node230-article7-rule701&num=0&edition=prelim).

[2] See Gregory Rubelmann, 50 State+ Survey of Evidentiary Rule 701(c), Western New Eng. L. Rev. (Apr. 26, 2025), https://www.wnelawreview.org/post/50-state-survey-of-evidentiary-rule-701-c.

[3] Hon. Charles R. Richey, Proposals To Eliminate the Prejudicial Effect of the Use of the Word "Expert" Under the Federal Rules [of] Evidence in Civil and Criminal Jury Trials, 154 F.R.D. 537, 542 (1994).

[4] Central R.R. Co. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926).

[5] See Fed. R. Evid. 701, supra note 1.

[6] Id. at Notes of Advisory Committee on Proposed Rules.

[7] See id. at Rule 701.

[8] See Rubelmann, supra note 2.

[9] 57 F.3d 1190 (3d Cir. 1995).

[10] Id. at 1193.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 1194.

[15] Id.

[16] Id. at 1204.

[17] See id. at 1206–07.

[18] 714 F.2d 498 (5th Cir. 1983).

[19] Id. at 500.

[20] Id.

[21] Id.

[22] Id. at 511.

[23] Id.

[24] Id.

[25] Id. at 510.

[26] Id. at 510, 512.

[27] Id. at 512

[28] Id.

[29] 351 Ore. 35 (2011).

[30] See id. at 41–42.

[31] Id. at 41.

[32] Id. at 44.

[33] Id. at 49.

[34] Id. at 49–50

[35] Id. at 38,49.

[36] See id. at 37, 54.

[37] Id. at 54–55.

[38] See id. at 54.

[39] Id. at 55.

[40] State v. Lerch, 296 Ore. 377, 384 (1984).

[41] Davis, 351 Ore. at 59–60.

[42] Fed. R. Evid. 701(c).

[43] Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1194 (3rd Cir. 1995).

[44] Id. at 1199.

[45] See Soden v. Freightliner Corp., 714 F.2d 498, 510–11 (5th Cir. 1983).

[46] Id. at 512.

[47] State v. Davis, 351 Ore. 35, 49 (2011).

[48] Or. Admin. R. 851-006-0040 (4) (2023) (indicating that the only kinds of nurses that may diagnose are Nurse Practitioners and Clinical Nurse Specialists).

[49] Davis, 351 Ore. At 49.

[50] Id. at 57.

[51] Id. at 62.

[52] Brent Norwalk is a character from season four of the NBC show, The Good Place.  He lacks self-awareness and believes his success was earned when it was actually handed to him.  He also attributes the success of those around him to himself.  Brent Norwalk, The Good Place Wiki, (last edited Nov. 14, 2024) (https://thegoodplace.fandom.com/wiki/Brent_Norwalk).

[53] See Soden v. Freightliner Corp., 714 F.2d 498, 510 (5th Cir. 1983).

[54] Id. at 511.

[55] Joyce W. Lacy & Craig E.L. Stark, The Neuroscience of Memory: Implications for the Courtroom, 14 Nat. Revs. Neuroscience 649 (2013).