Saturday, March 08, 2008

Evidence: You've Gotta Be Kidding Me!

While observing prelims today, the Stud came across an interesting objection by the defense attorney. The victim-witness was testifying to the underlying facts, including how the defendant had struck her with a vehicle and kept driving on.

Witness: Then she hit her gas and her car hit me--

Defense: Objection! Speculation! Lacks foundation! Witness is not qualified to give her opinion!

The judge gave the defense attorney an incredulous look, and the witness had this terrific look on her face as if to say, "You've got to be kidding me!"

For those who are taking evidence, the reason for this is that, while normally opinion testimony is reserved for experts, there are various things for which a lay witness can form an opinion. For example, if someone appeared drunk, it is within the ambit of lay experience. The examining attorney may have to rephrase the question so that the witness can testify that the person "appeared drunk" rather than "was drunk", but most judges are not going to insist on meticulous form, especially where the objection does nothing but slow down the proceeding, particularly on a Friday afternoon.

In this case, because the witness had already testified that the defendant drove her car into her, and because cars tend not to move except by someone stepping on the gas pedal, and because this is obviously within the everyday experience of a lay witness, particularly one in Southern California, it was clearly permissible lay opinion.

The objection was overruled.

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