Colo. R. Evid. 701
If the witness is not testifying as an expert, the witness' 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, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
(Federal Rule Identical.)
CRE 701
Committee Comment
This rule does not foreclose an owner from giving an opinion as to the value of his real property. Universal Insurance Company v. Arrigo, 96 Colo. 531, 44 P.2d 1020 (1935).
Annotation Law reviews. For article, "Opinion Testimony", see 22 Colo. Law. 1185 (1993). For article, "Rule 701: Admissibility of Opinion Testimony by Lay Witnesses", see 26 Colo. Law. 63 (March 1997). For article, "Rules 701 and 702: Boundary Between Lay and Expert Opinion Testimony", see 34 Colo. Law. 53 (July 2005). Lay testimony must be: (1) Rationally based on the perception of the witness; and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. People v. Baird, 66 P.3d 183 (Colo. App. 2002). Establishment of qualifications to express opinion is question for trial court. The sufficiency of evidence to establish the qualifications and knowledge of a witness to express an opinion based on physical facts he has observed is a question for the trial court, not subject to reversal unless clearly erroneous. People v. Gallegos, 644 P.2d 920 (Colo. 1982). Attorney's opinion about client's mental condition admissible. The trial court errs in refusing to permit an attorney to express his opinion, as a lay witness, on the question of whether his client suffered from an impaired mental condition at the time of his alleged commission of an offense. People v. Rubanowitz, 673 P.2d 45 (Colo. App. 1983). In a first-degree sexual assault trial, testimony of counselor consisting of general comments based on her observations of victim's demeanor following alleged sexual assault was not inadmissible as amounting to a scientific diagnosis of rape trauma syndrome, as long as counselor did not use scientific terminology, discuss theory, or state an opinion as to whether she believed victim. People v. Farley, 712 P.2d 1116 (Colo. App. 1985), aff'd, 746 P.2d 956 (Colo. 1987). Lay opinion from police officer admitted where police officer testified he had been involved in law enforcement for fourteen years, had experience investigating burglaries of parking lot money depositories, and was familiar with the tools similar to those allegedly used in burglary of money depository. People v. Garcia, 784 P.2d 823 (Colo. App. 1989). Police officer may offer lay testimony if based on his or her perceptions and experiences but does not require specialized training or education. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005). Lay opinion from detective stating he recognized defendant on a surveillance videotape was admissible, regardless of the fact that defendant's appearance had not changed and the jury was allowed to view the videotape. The court held the detective's testimony was rationally based on his knowledge of the defendant's appearance and that, since the defendant's identity was at issue in the trial, the detective's testimony was helpful to a clear understanding of a fact at issue. People v. Robinson, 908 P.2d 1152 (Colo. App. 1995), aff'd, 927 P.2d 381 (Colo. 1996). Lay opinion of crime scene technician admitted where the technician testified to the location of bullet holes and the paths of the bullets. The holes and paths of the bullets were evident from photographs. Technician did not perform any experiments or reconstruct the incident, therefore his testimony did not require any specialized or scientific knowledge to understand. People v. Caldwell, 43 P.3d 663 (Colo. App. 2001). Allowing police officer's testimony regarding use of glass pipe and torch lighter to smoke methamphetamine not plain error. People v. Malloy, 178 P.3d 1283 (Colo. App. 2008). A lay witness may testify concerning the identity of a person depicted in a surveillance photograph if there is some basis for concluding that the witness is more likely to identify the defendant from the photograph than the jury is. Robinson v. People, 927 P.2d 381 (Colo. 1996). Lay opinion testimony of analyst from division of insurance that petitioner's income was not misrepresented admitted when she reviewed documents already before the jury and she based her testimony on her common tax knowledge and her experience as an insurance analyst. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Lay opinion of analyst from division of insurance regarding petitioner's mental health admissible where testimony was based upon documentation analyst received as well as a personal meeting with the petitioner, and was supported by other evidence. Even if the testimony was inadmissible lay opinion, admission of testimony was cumulative, corrected by a limiting instruction, and harmless. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Lay opinion testimony is admissible to prove drug-induced intoxication. There is no basis to distinguish lay testimony regarding alcohol-induced intoxication from lay testimony regarding drug-induced intoxication, as long as the proper foundation has been laid. People v. Souva, 141 P.3d 845 (Colo. App. 2005). Lay opinion testimony of witnesses, including minors, admissible to identify the substance provided to them by defendant was marijuana. The witnesses described prior experiences with marijuana and based their identification on its appearance, taste, and distinctive smell. These matters did not require any technical or specialized knowledge that would fall within the scope of C.R.E. 702. Accordingly, the minors established a proper foundation for their identification testimony. People v. Graybeal, 155 P.3d 614 (Colo. App. 2007). There is no requirement that chemical tests be administered or that expert testimony be offered to bolster such lay identification testimony. People v. Graybeal, 155 P.3d 614 (Colo. App. 2007). Trial court inappropriately admitted lay testimony of investigating police officer as to experimentation with respect to and reconstruction of the incident without qualifying the officer as an expert witness. The officer's testimony involved more than common experience and required practical knowledge of a scientific, technical, or specialized nature. Admission of the testimony constitutes harmless error, however, and does not require reversal. People v. Stewart, 55 P.3d 107 (Colo. 2002). Trial court improperly admitted expert testimony of police officers concerning methamphetamine amounts, production chemicals, and manufacture under the guise of lay testimony. The testimony required specialized knowledge and training and, thus, was subject to the expert witness requirements of C.R.E. 702. People v. Veren, 140 P.3d 131 (Colo. App. 2005). A person may testify as a lay witness only if his or her opinions or inferences do not require any specialized knowledge and could be reached by any ordinary person. To determine whether an opinion is one "which could be reached by any ordinary person", courts consider whether ordinary citizens can be expected to know or to have certain experiences. In this case, although the officer had experience with photo arrays that an ordinary person would not, the officer's opinion could have been reached by an ordinary person. People v. Rincon, 140 P.3d 976 (Colo. App. 2005). Court abused its discretion in admitting some lay opinions from mental health providers who had not been properly noticed as experts by the prosecution. Some of the opinions were expert opinions improperly admitted under the guise of lay opinion testimony. The improper testimony related to symptoms of specific mental illness and opinions about whether defendant suffered from mental illness. The evidence relied upon the witness' specialized knowledge and training and, therefore, went beyond the bounds of lay opinion. The error in this case was harmless since there was ample evidence in addition to the improperly admitted opinions. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008). Lay opinion from alleged murder victim's coworker who heard abusive statements made by defendant to victim found admissible and the coworker could make characterization of such statements as a part of the testimony. People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991). Admission of the opinion testimony of lay witnesses on the issue of causation does not constitute reversible error. Herrera v. Gene's Towing, 827 P.2d 619 (Colo. App. 1992). Forensic interviewer's testimony properly admitted. Testimony was not expert opinion evidence but rather an opinion based on observation. People v. Tillery, 231 P.3d 36 (Colo. App. 2009), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011); People v. Marsh, __ P.3d __ (Colo. App. 2011). Lay witness may offer opinion testimony on intent of victim if witness had sufficient opportunity to observe the person and draw a rational conclusion about the person's state of mind. People v. Jones, 907 P.2d 667 (Colo. App. 1995). The trial court did not abuse its discretion in allowing a counselor from the detoxification facility at which the defendant allegedly committed a sexual assault to state an opinion as to whether the sexual encounter was consensual, since the testimony was based on the counselor's own observations. The trial court appropriately allowed the counselor to testify as to whether the victim was in an unconscious state at the time of the assault and to testify as to whether the defendant's actions constituted a sexual assault. People v. Hoskay, 87 P.3d 194 (Colo. App. 2003). Where the witness was not qualified as an expert and the witness had no personal experience with the maintenance expenses on the property, evidence presented as to the amount of future maintenance expenses was legally insufficient. Pomeranz v. McDonald's Corp., 843 P.2d 1378 (Colo. 1993). Applied in People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984); Cheney v. Hailey, 686 P.2d 808 (Colo. App. 1984); Witcher v. Canon City, 716 P.2d 445 (Colo. 1986); People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Brown, 731 P.2d 763 (Colo. App. 1986); Sandoval v. Birx, 767 P.2d 759 (Colo. App. 1988); Pyles-Knutzen v. Bd. of County Comm'rs, 781 P.2d 164 (Colo. App. 1989); Graham v. Lombardi, 784 P.2d 813 (Colo. App. 1989); People v. Caldwell, 43 P.3d 663 (Colo. App. 2001). .