Nebraska Revised Statutes
Chapter 27 - Courts; Rules of Evidence
27-701 - Rule 701. Opinion testimony by lay witnesses; when.

27-701. Rule 701. Opinion testimony by lay witnesses; when.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Source

Annotations

1. Scope


2. Testimony permitted


3. Testimony not permitted


4. Miscellaneous


1. Scope


Because the credibility of witnesses is a determination within the province of the trier of fact, testimony that usurps that role is not helpful and thus is improper opinion testimony under this section and section 27-702. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).


The abolition of the "ultimate issue rule" does not lower the bar so as to admit all opinions, because under this section and section 27-702, opinions must be helpful to the trier of fact. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).


Under this section and section 27-702, opinion testimony, whether by a lay or expert witness, is permissible only if it is helpful to the trier of fact in making a determination of a fact in issue. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).


Under this section and sections 27-403 and 27-702, a witness may not give an opinion as to a defendant's guilt or how the case should be decided, but, rather, must leave the conclusions to be drawn by the trier of fact, because such opinions are not helpful. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).


Lay testimony should be excluded whenever the point is reached at which the trier of fact is being told that which it is entirely equipped to determine. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).


Opinion testimony by a lay witness is generally admissible where it is necessary and advisable as an aid to the jury, but it should be excluded whenever the point is reached at which the trier of fact is being told that which it is itself entirely equipped to determine. Jershin v. Becker, 217 Neb. 645, 351 N.W.2d 48 (1984).


2. Testimony permitted


A police officer's testimony regarding the meanings of drug-related code words and jargon used by people involved in the distribution of crack cocaine could not be excluded in a prosecution for drug conspiracy on the basis it invaded the province of the jury. The officer's testimony was helpful, because the meanings of narcotics code words and phrases were not within the common understanding of most jurors, cyphering of the meaning and intent of cell phone calls involving the defendant was something the jury could not do without the interpretation of slang or code words used during the wiretapped calls, and there was proper foundation for the officer's testimony. State v. Russell, 292 Neb. 501, 874 N.W.2d 9 (2016).


Pursuant to this section, lay opinion is admissible to identify the substances in question in a drug prosecution. State v. Watson, 231 Neb. 507, 437 N.W.2d 142 (1989).


A person who is familiar with a signature may testify as to the validity of that signature. In re Estate of Villwok, 226 Neb. 693, 413 N.W.2d 921 (1987).


Parents and student may testify as to their opinion of best educative interest if rationally based on the perception of the witness and helpful to the determination of a fact in issue. In re Freeholder Petition, 213 Neb. 633, 330 N.W.2d 907 (1983).


A nonexpert with an intimate personal acquaintance may be allowed to testify as to the mental condition of a defendant pleading insanity. The jury may weigh and determine the credibility of the opinion testimony of a nonexpert witness as to the mental state of a defendant pleading insanity but the mere fact that the testimony is given by a nonexpert does not make it inadmissible if the witness had the necessary acquaintance with the defendant. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980).


3. Testimony not permitted


Under this section and sections 27-602 and 27-702, it is improper for a witness to testify whether another person may or may not have been telling the truth in a specific instance. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).


This section does not permit a lay witness to render an opinion based upon obvious speculation or conjecture. Childers v. Phelps County, 252 Neb. 945, 568 N.W.2d 463 (1997).


Testimony of deputy sheriff was improper lay expert opinion regarding credibility of witness. State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).


Opinion evidence by lay witness as to whether defendant in motor vehicle homicide case caused the collision was intended to decide the issue of causation for the jury, and thus was inadmissible under this section. The lay witness' function is only to describe what he or she has observed, and the trier of fact will draw a conclusion from the facts observed and reproduced by the witness. State v. William, 231 Neb. 84, 435 N.W.2d 174 (1989).


The mere odor of alcohol, standing alone, is not sufficient to justify either a lay witness or an expert rendering an opinion as to whether one is intoxicated in violation of law. State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983).


Opinion of police officer witness as to speed of vehicles involved in collision, where opinion based solely on fact of collision, and where witness did not see the collision and was not qualified as an expert, not admissible under this section because not rationally based on the perception of the witness. Belitz v. Suhr, 208 Neb. 280, 303 N.W.2d 284 (1981).


4. Miscellaneous


A defendant doctor's testimony was not hearsay, because it was limited only to his perception of another treating doctor's opinion, rather than providing the actual content of the other treating doctor's out-of-court statement. The defendant doctor had firsthand knowledge of the other treating doctor's statement, his belief as to the opinion was an inference that was rationally based on the context, and the testimony was helpful to an ultimate issue. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).


The trial court is given discretion in determining whether a sufficient basis for a lay witness' opinion testimony has been established and such determination will not ordinarily be disturbed on appeal absent an abuse of that discretion. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991).


Any error in allowing a police technician to give a lay opinion as to what substances were located in the area of an assault victim was harmless in light of victim's eyewitness identification of the defendant. State v. Broomhall, 221 Neb. 27, 374 N.W.2d 845 (1985).


A trial court has great discretion to determine the qualification of a witness to state an opinion and will be reversed only for an abuse of that discretion. A witness may be qualified to give an opinion based upon managerial experience even without practical, personal experience. Schmidt v. J. C. Robinson Seed Co., 220 Neb. 344, 370 N.W.2d 103 (1985).


Lay witness opinion testimony concerning the identity of a person depicted in a photograph or video is admissible if there is evidence that the witness is better able to correctly identify the contents of the photograph or video than the jury. State v. Hickey, 27 Neb. App. 516, 933 N.W.2d 891 (2019).

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