12. THE OPINION RULE

The opinion rule for lay (ordinary) witnesses is Rule 701. It is closely related to the personal knowledge rule. The difference is this: The personal knowledge rule asks whether a witness has ANY personal knowledge about a subject; the opinion rule asks whether the witness has ENOUGH personal knowledge about it to make it worthwhile to hear the witnesses opinions.

Both the personal knowledge rule and the opinion rule are rules of foundation -- if you lay the right foundation, the testimony is admissible. Thus, the OBJECTIONS are made to lack of foundation. If it's unclear whether a witness has enough personal knowledge upon which to base a rational opinion, you do not object by asserting that that the witness does not have sufficient personal knowledge, you object that the proponent has not laid a foundation showing that the witness has sufficient knowledge.

How do you decide whether to object on Rule 602 or 701?  Consider a bank robbery trial where the defendant denies being the robber and claims alibi.

Example 1: A witness testifies: "I saw a bank surveillance photo on America's Most Wanted and I thought the robber was probably high on drugs." The objection is made under Rule 602, because the witness appears to not have been present and therefore to have absolutely no personal knowledge of the events.

Example 2: A witness says: "I was present in the bank and saw the robber and thought he was probably high on drugs." You can't sensibly object under 602 because the witness testified she was present and saw the event, so the objection should be made under Rule 701, to lack of foundation that the witness has enough personal knowledge and experience to form a rational opinion on the defendant's condition.

Questions on the distinction between 602 and 701? Email tanford@indiana.edu , and include the reference 1201.

Let's look at Problem 12A, item1. Plaintiff asks an eyewitness how fast the car was going. If defendant objects that the testimony would violate the opinion rule, how should the plaintiff respond? Phrasing the response is harder than it looks, so you should probably write it out. Then click here