I've blogged before about various federal courts ignoring the language of the 2000 amendments to Federal Rule of Evidence 702, dealing with expert testimony, and instead relying on pre-2000 circuit precedents that conflict with that language.
I just came across an example of the same phenomenon with regard to Rule 701, dealing with lay opinion testimony. Rule 701 was also amended in 2000, to clarify that there is no overlap between lay opinion and expert opinion testimony; for testimony to be within the scope of Rule 701, it must be "rationally based on the perception of the witness" and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." This was meant to close a loophole in which some courts were allowing parties to avoid the strictures of Rule 702 by deeming opinion testimony based on specialized knowledge to be lay testimony subject to the more lenient guidelines of Rule 701.
Yet last year, the Third Circuit wrote in Eichorn v. AT&T Corp., 484 F.3d 644, "Although this court has recognized that lay opinion as to technical matters may sometimes be appropriate, Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1200-01 (3d Cir.1995), we have cautioned that 'Rule 701 requires that a lay opinion witness have a reasonable basis grounded either in experience or specialized knowledge for arriving at the opinion that he or she expresses.'.. .Id."
It should be obvious from the language of Rule 701 that opinions on technical matters grounded in specialized knowledge are now considered expert and not lay testimony, and that this language from Asplundh is no longer good law. (Fortunately, it didn't make a difference to the outcome of this particular case.) Yet it seems that with regard to Rule 701, like Rule 702, judges are relying on prior precedents without noting that those precedents have been rendered moot by the 2000 amendments. It's tempting to lay the blame on the judges' clerks who draft the opinions, but the buck stops with the ladies and gentlemen who wear the black robes.
For other dubious applications of Rule 701, see United States v. Maher (1st Cir. 2006) (approving under Rule 701 testimony by a police officer based on his training and experience that a post-it note found in the defendant's van contained a list of customers' orders; was a "[d]rug distributors' way of being organized"; and that the number four written next to an individual's name referred to "[f]our ounces of cocaine.") [besides the 701 issue, the post-it note testimony is absurd on its face]; Brown v. Ryan's Family Steak Houses, Inc., 113 Fed. Appx. 512, 2004 WL 2423688 (4th Cir. 2004) (allowing a physician to testify as a lay witness under Rule 701 that his patient lacked the requisite mental capacity to enter into a binding contract due to brain atrophy and subclavian steal syndrome); United States v. Henderson, 409 F.3d 1294, 1300 (11th Cir. 2005), (suggesting that a physician's diagnosis of a hairline fracture of the jaw would be "permissible lay testimony"); Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003) (permitting the introduction as lay opinion testimony offered by a ship repairer's employees as to whether charges were fair and reasonable or in line with similar services provided by similar operations). Other examples from readers are welcome.