Mass. R. Evid. 701
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is
Mass. Guid. Evid. 701
This section, which is taken nearly verbatim from Fed. R. Evid. 701, reflects Massachusetts practice. See Noyes v. Noyes, 224 Mass. 125, 129 (1916); Commonwealth v. Sturtivant, 117 Mass. 122, 133, 137 (1875); Commonwealth v. Brusgulis, 41 Mass. App. Ct. 386, 390-391 (1996). "While an expert opinion is admissible only where it will help jurors interpret evidence that lies outside of common experience, a lay opinion is admissible only where it lies within the realm of common experience" (quotation omitted). Commonwealth v. Canty, 466 Mass. 535, 541-542 (2013). Where the same witness gives both lay and expert testimony, the better practice is for the trial judge to instruct the jury about the difference. Commonwealth v. Mason, 485 Mass. 520, 531-532 (2020). See Commonwealth v. Lowery, 487 Mass. 851, 865, 869-872 (2021) ("no impermissible blurring of lines" between detective's testimony as expert and as percipient witness where detective's expert testimony "essentially was confined to explaining technical terms" and "was given in an effort to aid the jury's understanding of terms used in the sex trade," and where judge properly instructed jury on difference). "The rule that witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description." Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961) (judge had the discretion to permit witnesses to use the words "boisterous" and "in an arrogant manner" in describing the actions of a person they observed). Accord Commonwealth v. Bonomi, 335 Mass. 327, 339 (1957) (condition of nervousness or happiness); Commonwealth v. Fuller, 66 Mass. App. Ct. 84, 91 (2006). See also Commonwealth v. Bonds, 445 Mass. 821, 830 (2006); McGrath v. Fash, 244 Mass. 327, 329 (1923) (witness permitted to testify that "all of a sudden this truck came around the corner on two wheels, and zigzagging across the street and appeared to be out of the control of the driver"); Commonwealth v. Rodziewicz, 213 Mass. 68, 69 (1912) (it was error to permit a police investigator to identify points of origin of a fire based simply on observations about condition of the burned structure).
Ultimately, the admission of summary descriptions of observed facts is left to the discretion of the trial judge. Kane, 341 Mass. at 647 ("Trials are not to be delayed and witnesses made inarticulate by too nice objections or rulings as to the use of such descriptive words."). See Commonwealth v. Barbosa, 477 Mass. 658, 673-674 (2017) (witness may testify about time discrepancy between video surveillance footage and GPS data to explain "investigative significance" of evidence). A witness may not express an opinion about the credibility of another witness. See Commonwealth v. Triplett, 398 Mass. 561, 567 (1986).
Illustrations. When, due to the complexity of expressing the observation, such evidence might otherwise not be available, witnesses are permitted, out of necessity, to use "shorthand expressions" to describe observed facts such as the identity, size, distance, and speed of objects; the length of the passage of time; and the age, identity, and conduct of persons. See Commonwealth v. Tracy, 349 Mass. 87, 95-96 (1965); Noyes v. Noyes, 224 Mass. 125, 129-130 (1916); Ross v. John Hancock Mut. Life Ins. Co., 222 Mass. 560, 562 (1916).
Cellular Phone Positioning. A lay witness is not permitted to testify to the intra-cell site position of a phone user because the testimony requires specialized knowledge that relates to the scientific and technological features of cell sites. Commonwealth v. Gonzalez, 475 Mass. 396, 412 n.37 (2016).
E-mail Accounts. Expert testimony is not necessary for jurors to understand business records from an e-mail service provider setting forth the dates and times that e-mail accounts were created and last used. See Commonwealth v. Middleton, 100 Mass. App. Ct. 756, 761-762 (2022).
Identity. A witness's opinion concerning the identity of a person depicted in a photograph or video is admissible only where that witness is more likely than the jury to identify the person correctly from the photo or video. Commonwealth v. Pina, 481 Mass. 413, 429-430 (2019). See Commonwealth v. Wardsworth, 482 Mass. 454, 476 (2019) (reversible error to allow police officer to identify person in surveillance videotape as defendant because jury was equally capable of making determination). Compare Commonwealth v. Brum, 492 Mass. 581, 593-594 (2023) (witness who had known defendant for over fifteen years and recognized his clothes and gait properly permitted to identify defendant in surveillance video), Commonwealth v. Vitello, 376 Mass. 426, 459-460 & n.29 (1978) (police officer permitted to testify that photograph selected by witness depicted defendant because defendant's appearance had changed since date of offense), and Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323-329 (2000) (police officer permitted to testify that man depicted in surveillance videotape putting choke hold on victim was defendant where video was poor quality, defendant's appearance at trial was different from how "he generally presented in everyday life," and officer had long-standing social acquaintance with defendant unrelated to his duties as a police officer), with Commonwealth v. Robertson, 489 Mass. 226, 237 (2022) (witness who enhanced photograph was in no better position than jury to identify defendant and should not have offered opinion as to physical similarities between image in photograph and defendant). A lay witness may also testify about the circumstances of the video if that testimony will assist the jury in assessing photographic evidence. Commonwealth v. Grier, 490 Mass. 455, 476 (2022) (testimony regarding still image provided "context that would allow the jurors to better situate the scene and the individuals depicted in it"). But see Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 591-593 (2017) (police officer's testimony that person in surveillance video that was inadvertently erased was defendant was not helpful to jury unless accompanied by "enough information to allow the jury to conduct an independent assessment of the accuracy and reliability of his identifications").
Intent. This section does not permit a witness to express an opinion about what someone was intending or planning to do based on an observation of the person. See Commonwealth v. Jones, 319 Mass. 228, 230 (1946). A lay witness may not express an opinion about what another person was intending or planning to do based on observations of that person's conduct. Borella v. Renfro, 96 Mass. App. Ct. 617, 625 n.22 (2019).
Internet Searches. A lay witness may describe an Internet search and its results, as the search does not require specialized knowledge. Commonwealth v. Mason, 485 Mass. 520, 538-539 (2020).
Machinery. Lay witnesses can testify based on their experience with a machine or technology; however, expert testimony is usually required to offer an opinion based on technical or specialized knowledge. Commonwealth v. Bankert, 103 Mass. App. Ct. 107, 120-121 (2023) (testimony from gas company employees that condition of gas meter indicated "possible tampering" and that disengagement of gears can result in showing of less gas usage crossed line into improper expert opinion).
Mental Capacity. A lay opinion as to sanity or mental capacity is permitted only by an attesting witness to a will and only as to the testator's mental condition at the time of its execution. See Holbrook v. Seagrave, 228 Mass. 26, 29 (1917); Commonwealth v. Spencer, 212 Mass. 438, 447 (1912). "Although a lay witness may not testify about whether another person suffered from mental illness, such a witness is permitted to 'testify to facts observed.'" Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 330 n.43 (2010), quoting Commonwealth v. Monico, 396 Mass. 793, 803 (1986). See Commonwealth v. Da Lin Huang, 489 Mass. 162, 176-177 (2022) (testimony about defendant's demeanor, attire, and hygiene permissible but error for divorce attorney to testify as lay witness that she saw no basis to conclude or suspect that defendant had mental illness); Commonwealth v. Dobbins, 96 Mass. App. Ct. 593, 597-598 (2019) (testimony of victim's grandmother that victim had learning disability not improper lay opinion).
Slang Terms. Where a lay witness is giving an interpretation of slang terms, jargon, or other coded language, the proponent must establish that the witness has a sufficient basis for knowing the terms and that the testimony is not based on scientific, technical, or specialized knowledge. Commonwealth v. Fernandes, 492 Mass. 469, 481-482 (2023).
Sobriety.
- Alcohol. A police officer or lay witness may provide an opinion, in summary form, about another person's sobriety, provided there exists a basis for that opinion. Commonwealth v. Orben, 53 Mass. App. Ct. 700, 704 (2002). Where a defendant is charged with operating a vehicle while under the influence of alcohol, a police officer who observed the defendant may offer an opinion as to the defendant's level of intoxication but may not offer an opinion as to whether the defendant's intoxication impaired his ability to operate a motor vehicle, because the latter comes too close to an opinion on the defendant's guilt. Commonwealth v. Canty, 466 Mass. 535, 545 (2013). As a lay witness, a police officer may testify to the administration and results of field sobriety tests that measure a person's balance, coordination, and acuity of mind in understanding and performing simple instructions, as a juror understands from common experience and knowledge that "intoxication leads to diminished balance, coordination, and mental acuity." Commonwealth v. Sands, 424 Mass. 184, 187 (1997) (contrasting the Horizontal Gaze Nystagmus Test, which requires expert testimony, from "ordinary" field sobriety tests such as a nine-step walk and turn and recitation of the alphabet); Id. at 186 ("Expert testimony on the scientific theory is needed if the subject of expert testimony is beyond the common knowledge or understanding of the lay juror.").
- Marijuana. Where a defendant is charged with operating a motor vehicle under the influence of marijuana, a police officer may testify as a lay witness as to observations of the defendant's performance of the one-leg stand test and the nine-step walk-and-turn test. Commonwealth v. Gerhardt, 477 Mass. 775, 783 (2017). These observations are admissible to the extent that they are probative of "a defendant's balance, coordination, ability to retain and follow directions, and ability to perform tasks requiring divided attention," as well as "the presence or absence of other skills necessary for the safe operation of a motor vehicle." Id. However, a police officer may not testify that a defendant charged with operating under the influence of marijuana "passed" or "failed" a field sobriety test. Id. at 784. Lay witnesses and police officers also may not present testimony indicating that, in their opinion, a defendant was under the influence of marijuana. Id. A testifying witness "should" refer to field sobriety tests as "roadside assessments." Id. at 785. A trooper's testimony limited to what the defendant was asked to do and observations the trooper made of what the defendant did is permissible descriptive testimony, not impermissible evaluative testimony. Commonwealth v. Smith, 95 Mass. App. Ct. 437, 443-444 (2019).
Cross-Reference: Note "Effect of Intoxicants" to Section 702, Testimony by Expert Witnesses.
Sounds. In Commonwealth v. Sturtivant, 117 Mass. 122, 133 (1875), the Supreme Judicial Court stated that a witness "may state his opinion in regard to sounds, their character, from what they proceed, and the direction from which they seem to come."
Struggle. An experienced police officer, or possibly even a lay witness, could opine on whether a scene was suggestive of a struggle. Commonwealth v. Burgess, 450 Mass. 422, 436 n.8 (2008).
Value. Depending on the circumstances, opinion testimony about the value of real or personal property may be given by lay witnesses or expert witnesses. With regard to lay witnesses,
"[t]he rule which permits the owner of real or personal property to testify as to its value does not rest upon the fact that he holds the legal title. The mere holding of the title to property by one who knows nothing about it and perhaps has never even seen it does not rationally and logically give him any qualification to express an opinion as to its value. Ordinarily an owner of property is actually familiar with its characteristics, has some acquaintance with its uses actual and potential and has had experience in dealing with it. It is this familiarity, knowledge and experience, not the holding of the title, which qualify him to testify as to its value."
Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 503 (1934). An owner of a small business may give an opinion about the company's value where the owner is fully aware of the contracts that the business has and its liabilities. Spinosa v. Tufts, 98 Mass. App. Ct. 1, 11 (2020). This same principle applies to a landowner's opinion as to the value of property. von Henneberg v. Generazio, 403 Mass. 519, 524 (1988). A lay witness also may testify to the value of the witness's own services. Berish v. Bornstein, 437 Mass. 252, 273 (2002). But see Turner v. Leonard, Inc., 17 Mass. App. Ct. 909, 910-911 (1983) (owner was not so familiar with his automobile to permit him to offer an opinion as to its value).