CORE CRIMINAL LAW SUBJECTS: Evidence: Opinion Testimony

2015 (September Term)

United States v. Martin, 75 M.J. 321 (human lie detector evidence is elicited when a witness provides an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in the case; there is no litmus test for determining whether a witness has offered human lie detector evidence). 

(if a witness does not expressly state that he believes a person is truthful, a court examines the testimony to determine if it is the functional equivalent of human lie detector testimony; testimony is the functional equivalent of human lie detector testimony when it invades the unique province of the court members to determine the credibility of witnesses, and the substance of the testimony leads the members to infer that the witness believes the victim is truthful or deceitful with respect to an issue at trial).

(human lie detector evidence is inadmissible at a court-martial because it is a fundamental premise of our criminal trial system that the panel is the lie detector and determines the weight and credibility of witness testimony). 

(in this case, both trial defense counsel and trial counsel elicited testimony from the victim’s husband about whether he believed his wife’s account of an alleged sexual encounter with appellant; however, the husband’s testimony on direct examination by the trial counsel did not rise to the level of actual human like detector testimony, nor did it constitute the functional equivalent of human lie detector testimony; although trial counsel did elicit human lie detector testimony on redirect examination, it was the trial defense counsel who invited the error when, in the course of conducting cross-examination, he was the first party to elicit human lie detector testimony from the witness on the same evidentiary point; and where trial defense counsel first elicits human lie detector evidence on cross-examination, the invited error doctrine precludes appellant from complaining about the government’s elicitation of this type of evidence on redirect). 

2014 (September Term)

United States v. Norman, 74 M.J. 144 (MRE 701 governs the admissibility of opinion testimony by a lay witness; under MRE 701 if the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences that are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (c) not based in scientific, technical, or other specialized knowledge within the scope of Rule 702).

(MRE 701 establishes a two-part test for admissibility of lay opinion: (1) the opinion must be rationally based on the witness’s perception; and (2) the opinion must be helpful to the determination of a fact in issue; it is generally held that opinion testimony is not helpful where it does no more than instruct the factfinder as to what result it should reach). 

(in this case, the military judge abused his discretion in admitting under MRE 701 the testimony of a Marine MP who responded to appellant’s 911 call and testified that in his opinion, any Marine parent who endangers the life of a child by culpable negligence would bring discredit upon the Marine Corps; the MP’s lay opinion testimony essentially restated the terminal element; he offered no reasoning or particular facts as to his understanding of the concept of service discrediting conduct or how he understood this concept as applied to appellant’s actions; it was not clear why the testimony of a Marine MP, without more, would be helpful regarding a question of parenting practice, and whether such practice was service discrediting; although the MP’s testimony regarding his perceptions of the Marine Corps may have established a rational basis for his opinion, the testimony did not establish sufficient details to aid the factfinder in evaluating the service discrediting element; the witness met the first requirement in MRE 701 – he had a rational basis for his perceptions, but failed to meet the second requirement – his testimony was not helpful to the determination of a fact in issue for the factfinder). 

(under MRE 704, a witness may offer an opinion on an ultimate issue). 

2013 (September Term)

United States v. Knapp, 73 M.J. 33 (so-called human lie detector testimony, which is an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in the case, is inadmissible). 

(where an AFSOI agent testified that, using his specialized training, he was able to determine from specific nonverbal clues that appellant was being deceptive when he provided an innocent account of the events in question, this testimony was impermissible human lie detector testimony and improperly usurped the members’ role in determining witness credibility). 

2010 (September Term)

United States v. Eslinger, 70 M.J. 193 (the Military Rules of Evidence are applicable to sentencing and provide procedural safeguards to ensure the reliability of evidence admitted during sentencing; thus, a lay witness must always have a proper foundation to offer an opinion).  

(MRE 701(a) requires that lay witness opinions or inferences be limited to those that are rationally based on the perception of the witness; in similar fashion, MRE 602 provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter).

(lay opinions must be derived from direct observation and judgment). 

United States v. White, 69 M.J. 236 (in a prosecution for signing a false official document relating to the accusedís response about her criminal history on an AF Form 1540, Application for Clinical Privileges/Medical Staff Appointment, the military judge did not abuse his discretion in excluding as irrelevant the lay opinions of three witnesses as to the meaning of the criminal history question, specifically that these witnesses interpreted that question to refer only to convictions which occurred during the applicantís practice history; in order to be relevant, the lay opinions must have some nexus to the accusedís state of mind when she completed the AF Form 1540; however, none of the witnesses discussed their interpretations of the criminal history question with the accused before she completed the form; without evidence that would have established a nexus, their opinions were merely their own and had no relation to the accusedís state of mind or her intent when she completed the AF 1540). 

2009 (September Term)

United States v. Mullins, 69 M.J. 113 (in a trial involving the sexual assault of a child, an expert may testify as to what symptoms are found among children who have suffered sexual abuse and whether the child-witness has exhibited these symptoms; however, an expert may not testify regarding the credibility or believability of a victim, or opine as to the guilt or innocence of an accused). 



United States v. Roberson, 65 M.J. 43 (MRE 701 provides that a lay witness may express an opinion based upon personal observation where that opinion is relevant to a fact in issue and not based upon specialized, scientific knowledge). 


(so long as the opinion is based upon personal observation and is relevant, a lay witness may testify about anotherís emotional state).


(military judge abused his discretion in excluding the opinion of a witness concerning the emotional effect that the co-actorís statement that he was coming to get his money from the accused by any means had upon the accused; the evidence was admissible under MRE 701, as the opinion of the witness was based on personal observation and was relevant to the accusedís defense of duress based on his claim that his co-actor threatened him with bodily harm if he did not participate in the crimes of larceny and forgery, because it supported a conclusion that the accused was in fear of his co-actor).


(the opinion testimony of a witness that the accusedís co-actor was an aggressive-type person likely to strong-arm people, offered in conjunction with his testimony that the accusedís co-actor told him that the accused owed him money and that he was willing to get his money by any necessary means, was relevant as an opinion from which the factfinder could reasonably conclude that the accused perceived his co-actor as a threat; this relevance was not tied to his co-actor acting in accordance with that characteristic, which would be prohibited under MRE 404(b); rather, it went to the reasonableness of any fear the accused may have had in connection to the duress defense, which was based on his claim that his co-actor threatened him with bodily harm if he did not participate in the crimes of larceny and forgery). 


United States v. Brooks, 64 M.J. 325 (where relevant, MRE 608 permits a witness with an adequate foundation to render an opinion or reveal the reputation of another witness for truthfulness). 


(human lie detector testimony in which a witness offers an opinion as to whether a person was truthful in making a specific statement regarding a fact at issue in a case is inadmissible; neither a lay nor an expert witness has the foundation or expertise to opine that an individual is or is not telling the truth). 


(three reasons support the prohibition against experts testifying as human lie detectors; first, determination of truthfulness exceeds the scope of a witnessís expertise, for the expert lacks specialized knowledge to determine if a child-sexual-abuse victim is telling the truth and therefore cannot assist the trier of fact as required under MRE 702 before expert testimony is permissible; second, such testimony violates the limitations of MRE 608; and third, human lie detector testimony encroaches into the exclusive province of the court members to determine the credibility of witnesses). 




United States v. Byrd, 60 MJ 4 (this case concerns whether MRE 701 allows a lay witness to interpret what appellant meant when he wrote certain passages in letters to the witness; we agree with the well-established federal civilian rule that this kind of lay opinion testimony is, with certain limited exceptions, impermissible). 


(MRE 701 establishes a two-part test for admissibility of lay opinion: (1) the opinion must be rationally based on the witnessís perception; and (2) the opinion must be helpful to the determination of a fact in issue). 


(the general rule in federal civilian courts is that lay witnesses are normally not permitted to testify about their subjective interpretations or conclusions as to what has been said; such lay interpretations are admissible only if rationally based on perception of a witness and helpful either to an understanding of the testimony of the witness on the stand or to the determination of a fact in issue; for example, a lay witness may be permitted to interpret coded or code-like conversations; in order to allow lay opinion testimony interpreting a facially coherent conversation, the government would have to establish a foundation that called into question the apparent coherence of the conversation so that it no longer seemed clear, coherent, or legitimate).


(this Court agrees with the general prohibition of lay opinion testimony interpreting facially coherent communications; where terms are capable of being understood by the layman, and where the jury is capable of interpreting the language or slang involved, lay witness opinion testimony is improper, as is the lay witnessís conclusion or interpretation of the conversation).


(for a lay opinion interpreting another personís meaning to be admissible, the proponent must establish that the witness has some special basis for determining the speakerís true meaning; once that foundation is laid, the witness may clarify conversations that are abbreviated, composed of unfinished sentences and punctuated with ambiguous references to events that were clear only to the conversation participants, or which include code or code-like language; when such permissible testimony is presented, the accuracy of those perceptions is a question for the members).


(a witnessís opinions concerning appellantís meaning in passages in his letters that were facially coherent were inadmissible; a witnessís opinions concerning appellantís meaning when he wrote certain ambiguous statements were also inadmissible because they were unaccompanied by any particularized demonstration that the witness had a basis for determining appellantís true meaning; it was not enough to show that the witness was familiar with appellantís handwriting and had corresponded with him in the past; as the proponent of this testimony, the Government was required to demonstrate that the witness had some basis for knowing appellantís intended meaning for the particular phrases that the witness purported to interpret; a witnessís testimony providing background information concerning references in the letters to other events was admissible; and a witnessís testimony concerning appellantís remarks in earlier conversations was admissible as an account of admissions by a party opponent under MRE 801(d)(2)).


United States v. Kasper, 58 MJ 314 (the military judge erred when he permitted the prosecution to introduce "human life lie detector" testimony and failed to provide cautionary instructions).

(under MRE 608, a party may introduce opinion evidence regarding the general character of a person for truthfulness; the authority to introduce such opinion evidence, however, does not extend to "human lie detector" testimony Ė that is, an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case).

(there are several reasons for restricting human lie detector testimony; first, determination of truthfulness exceeds the scope of a witnessís expertise; second, such an opinion violates the limits on character evidence in MRE 608(a) because it offers an opinion as to the declarantís truthfulness on a specific occasion, rather than the knowledge of the witness as to the declarantís reputation for truthfulness in the community; and third, such opinion testimony places a stamp of truthfulness on a witnessís story in a manner that usurps the juryís exclusive function to weigh evidence and determine credibility).

(the prohibition against human lie detector testimony applies not only to expert testimony, but also to conclusions as to truthfulness offered by a nonexpert).

(the picture painted by the trial counsel at the outset of the prosecutionís case through a special agentís testimony was clear: a trained investigator, who had interrogated many suspects, applied her expertise in concluding that this suspect was lying when she denied drug use and was telling the truth when she admitted to one-time use; such human lie detector testimony is inadmissible; moreover, the human lie detector evidence was presented as a physiological conclusion).

(the prosecution introduced human lie detector testimony on the ultimate issue in the case Ė whether appellant was truthful as to the charge; in these circumstances, the error in permitting such evidence to be introduced was clear and it materially prejudiced the substantial right of appellant to have the members decide the ultimate issue decided without the members viewing appellantís credibility through the filter of human lie detector testimony).


United States v. Goldwire, 55 MJ 139 (to render opinion or reputation type testimony, it must be shown that the witness was a member of the community long enough to have become familiar with an individualís reputation in the community, or that the witness knew the individual long enough to have formed an opinion as to his character).

(the unique nature of the military community does not justify a finding that a single lie would constitute an adequate basis for opinion testimony regarding a witnessís character for truthfulness).

(a first sergeant had an adequate foundation for an opinion on appellantís truthfulness where: (1) the first sergeant was acquainted with the appellant through his role as first sergeant; (2) the first sergeant addressed appellantís involvement with underage drinking; (3) the first sergeant saw appellant numerous times; (4) the first sergeant was personally involved with appellant on at least two occasions, including disciplinary actions against appellant; and (5) as first sergeant, he investigated the incidents involving appellant).

United States v. Catrett, 55 MJ 400 (the military judge is charged with deciding whether a party has established a sufficient foundation for admission of opinion evidence concerning a personís character; the military judge has considerable discretion in this regard).

United States v. Dimberio, 56 MJ 20 (defense proffer showed that although expert had not known a given individual long enough to form a traditional opinion as to her character and had not heard about her reputation in the community, the expert could express an expert opinion about the individualís mental condition based upon his examination of the individual).


United States v. Littlewood, 53 MJ 349 (lay opinion testimony is admissible at court-martial and is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact.  See MREs 701, 702, and 704).

(to be admissible, opinion testimony by law witnesses must, inter alia, be helpful within the meaning of MRE 701; such opinion testimony is not helpful where it does no more than instruct the factfinder as to what result it should reach).

(military judge abused his discretion in permitting appellantís commander to testify as to his lay opinion that certain acts were indecent, prejudicial to good order and discipline, and service discrediting, where:  (1) the commanderís opinions as to the propriety of such conduct in the military in general may not be matters outside the ken of the average military judge or member; (2) the testimony was bald assertions, unsupported by reasoning or particular facts showing the manner in which these charged offenses embarrassed the command or undermined its morale; (3) the opinion was phrased in legal terms without explanation as to the lay witnessí understanding of these terms; and (4) the conclusory form of the testimony, unexplained and unequivocal, could foster the appearance of unlawful command influence in the eyes of the public).

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