Section 701. Opinion Testimony by Lay Witnesses

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 which 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 on scientific, technical, or other specialized knowledge within the scope of Section 702.

NOTE

This section, which is taken nearly verbatim from Fed. R. Evid. 701, reflects Massachusetts practice. See Noyes v. Noyes, 224 Mass. 125, 129, 112 N.E. 850, 851 (1916); Commonwealth v. Sturtivant, 117 Mass. 122, 133, 137 (1875); Commonwealth v. Brusgulis, 41 Mass. App. Ct. 386, 390–391, 670 N.E.2d 207, 210 (1996). “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, 171 N.E.2d 287, 292 (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, 140 N.E.2d 140, 151 (1957) (condition of nervousness or happiness). See also Commonwealth v. Bonds, 445 Mass. 821, 830, 840 N.E.2d 939, 947 (2006); Commonwealth v. Fuller, 66 Mass. App. Ct. 84, 91, 845 N.E.2d 434, 440 (2006).

A witness may not express an opinion about the credibility of another witness. See Commonwealth v. Triplett, 398 Mass. 561, 567, 500 N.E.2d 262, 265 (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, 207 N.E.2d 16, 20–21 (1965); Noyes v. Noyes, 224 Mass. 125, 129–130, 112 N.E. 850, 851 (1916); Ross v. John Hancock Mut. Life Ins. Co., 222 Mass. 560, 562, 111 N.E. 390, 391 (1916). 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, 879 N.E.2d 63, 76 n.8 (2008).

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, 761 N.E.2d 991, 995–996 (2002). 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, 675 N.E.2d 370, 372 (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, 675 N.E.2d at 371 (“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.”).

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.” See also McGrath v. Fash, 244 Mass. 327, 329, 139 N.E. 303, 304 (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, 99 N.E. 574, 575 (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).

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, 116 N.E. 889, 890–891 (1917); Commonwealth v. Spencer, 212 Mass. 438, 447, 99 N.E. 266, 269–270 (1912).

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, 65 N.E.2d 422, 423–424 (1946).

In some circumstances, lay witnesses are permitted to identify a person in a photograph or on videotape. Compare Commonwealth v. Vitello, 376 Mass. 426, 459–460 & n.29, 381 N.E.2d 582, 600–601 & n.29 (1978) (allowing police officer to testify that a photograph selected by a witness depicted the defendant because his appearance had changed since the date of the offense), and Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323–329, 729 N.E.2d 642, 644–648 (2000) (allowing police officer to testify that man depicted in a surveillance videotape who was holding the victim was the defendant “because [1] the image in the videotape and the prints made from it were of poor quality . . . [2] [the officer] had long familiarity with the defendant that enabled him to identify an indistinct picture of the defendant; [3] there was some change in the appearance of the defendant at trial and as he generally presented in everyday life outdoors; and [4] the acquaintanceship of [the officer] with the defendant, as it was presented to the jury, was social rather than tied to [the officer’s] duties as a police officer”), with Commonwealth v. Austin, 421 Mass. 357, 365–366, 657 N.E.2d 458, 463–464 (1995) (excluding testimony of police officer identifying person in a surveillance videotape as the defendant because the jury was equally capable of making the determination), and Commonwealth v. Nassar, 351 Mass. 37, 41–42, 218 N.E.2d 72, 76–77 (1966) (because a sketch and a photograph of the defendant were in evidence the jury did not require any assistance from a witness who was asked whether they were a likeness of the defendant).

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, 189 N.E. 839, 841 (1934). Accord von Henneberg v. Generazio, 403 Mass. 519, 524, 531 N.E.2d 563, 566 (1988) (same rule applied to landowner’s opinion as to damages to his property caused by filling of drainage ditch by abutter); Turner v. Leonard, Inc., 17 Mass. App. Ct. 909, 910–911, 455 N.E.2d 1215, 1217 (1983) (owner was not so familiar with his automobile to permit him to offer an opinion as to its value). A lay witness also may testify to the value of his or her own services. Berish v. Bornstein, 437 Mass. 252, 273, 770 N.E.2d 961, 979 (2002).

Ultimately, the admission of summary descriptions of observed facts is left to the discretion of the trial judge. Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647, 171 N.E.2d 287, 292 (1961) (“Trials are not to be delayed and witnesses made inarticulate by too nice objections or rulings as to the use of such descriptive words”).