As trial courts continue to struggle with distinctions between lay and expert opinion testimony, growing disparities between jurors’ level of technology savvy may further blur the line. The standard for opinion testimony properly offered by a lay witness is premised upon a rapidly evolving concept: the experiences of the average person in everyday life. Yet, the everyday life experiences for the Internet and technology-savvy twentysomethings typically differ dramatically from the life experiences of older generations (of course, exceptions abound). The varying common experiences, theoretically, may result in varying judicial determinations with regard to permissible lay opinion testimony.

Lay Opinion Testimony

Ten years ago, when the federal rule governing lay opinions was amended, Congress defined lay opinions as opinions rationally based on the witness’ perception, helpful to the jury’s understanding of the facts and not based upon “scientific, technical or other specialized knowledge” (which is the definition of expert testimony under the rules). Courts further articulated a litmus test for lay opinion testimony as opinions informed by reasoning processes familiar to the average person in everyday life. If the witness’ opinion derived from a sensory ability common to all, then it was a proper lay opinion; yet, if the opinion was based upon any “specialized knowledge,” then it is governed by expert testimony rules and explicitly carved out from lay opinion territory.

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