You Must Be This Qualified to Offer an Opinion: Permitting Law Enforcement Officers to Testify as Laypersons Under Federal Rule of Evidence 701

April 30, 2013

Every day, in courtrooms across the United States, law enforcement officers testify in criminal and civil trials. Often an officer is certified as an expert witness and, accordingly, can provide opinions to the court based on his or her law enforcement expertise. Other times, the officer offers testimony as a layperson. In the latter situation, Federal Rule of Evidence 701 controls the officer’s lay opinion testimony. This Rule was first adopted to remedy a problematic common law practice of universally prohibiting lay opinion testimony. As the Rule stands now, all lay witnesses, including law enforcement officers, must limit their opinions to ones that are based on their personal perceptions and that are helpful to the fact-finder.

Courts, however, are split regarding where to draw the line when lay officers are asked to provide lay opinion testimony about an investigation. In particular, courts have disagreed over the question of when a lay officer may provide opinion testimony about the meaning of recorded phone calls. This Note explores the three approaches the federal circuit courts take to this question. To resolve the split, this Note suggests that an amended version of the Second, Fourth, and Eighth Circuits’ approaches be adopted. These circuits hold that officers’ lay opinion testimony must be restricted to instances of true first-hand knowledge to ensure that jurors are not prejudiced by unqualified and unhelpful testimony.

May 2013

No. 6