3.15Lay Testimony¹

A.Admissibility

MRE 701 limits lay opinion testimony to certain circumstances:

“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.” MRE 701.

Testimony by police detectives “about the behavior patterns of crime victims” was properly admitted under MRE 701 because the detectives’ “opinions were based on their observations and training.” People v Allen, 331 Mich App 587, 607, 609 (2020), vacated in part on other grounds 507 Mich 856 (2021).² “Review of the record establishe[d] that their testimony was rationally based on their perceptions of victims of trauma and was presumably helpful to provide the jury with a clear understanding of the victim’s conduct.” Allen, 331 Mich App at 609 (also, the “testimony was not a ‘technical or scientific’ analysis” and the detectives’ “understanding of trauma and crime victims was acquired through training and experience”).

The trial court did not abuse its discretion by admitting the witness’s testimony regarding the opinion she noted in her claims log about the plaintiff’s injury as lay opinion testimony under MRE 701 where the witness “testified that she had significant experience in reviewing medical documentation for defendant [insurance company], she had approved payment of approximately 100 automobile-accident claims, and she had approved payment of those claims after determining that the insured had suffered a serious impairment of body function.” Andreson v Progressive Marathon Ins Co, 322 Mich App 76, 89 (2017).³ “Because [the witness’s] testimony was based on her review of medical records in the ordinary course of her employment, the opinion expressed in her claims log was rationally based on her perceptions, and it was helpful to a clear understanding of her trial testimony and to the determination whether [the plaintiff] suffered a serious impairment of body function.” Id. at 90. Moreover, the admissibility of the witness’s “claims-log entry, wherein she expressed the opinion that [the plaintiff] had suffered a serious impairment of body function, was not rendered inadmissible simply because the jury may have believed [the witness’s] initial evaluation of the seriousness and extent of [the plaintiff’s] injuries.” Id. at 91 (rejecting the defendant’s argument that the witness’s “testimony was inadmissible because the existence of a threshold injury is a legal conclusion, and witness testimony regarding a legal conclusion is improper”).

B.Distinction Between Lay and Expert Testimony⁴

The Michigan Court of Appeals noted the difference between testimony by a lay witness and an expert witness in Richardson v Ryder Truck Rental, Inc, 213 Mich App 447, 455 (1995) (citations omitted):

“Lay witness testimony in the form of an opinion is permitted where it is rationally based on the witness’ perception and helpful to a clear understanding of the witness’ testimony or the determination of a fact at issue. An expert witness is one who has been qualified by knowledge, skill, experience, training, or education and is used where scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or determine a fact at issue.”

C.Physical Observation

“Any witness is qualified to testify as to his or her physical observations and opinions formed as a result of them.” Lamson v Martin (After Remand), 216 Mich App 452, 459 (1996).

Admission of a sexual assault nurse’s testimony that the victim was “shielding herself” and “had her arms huddled around herself” while the nurse conducted a physical examination of the victim did not constitute plain error affecting defendant’s substantial rights. People v Brown, 326 Mich App 185, 197 (2019). Defendant challenged the testimony arguing it “improperly enhanced the victim’s credibility by indicating that, even though there was no evidence of trauma, the victim’s body language implied that the sexual assaults occurred.” Id. The nurse’s “testimony was admissible lay testimony under MRE 701, rather than as expert testimony,” because “testimony regarding the victim’s body language was not based on [the nurse’s] specialized knowledge but on her ‘perception of the witness.’” Brown, 326 Mich App at 197.

D.Property

A lay witness may testify as to his or her opinion of the monetary value of his or her real property, Grand Rapids v H R Terryberry Co, 122 Mich App 750, 753-754 (1983), or personal property, People v Watts, 133 Mich App 80, 83-84 (1984). Also see MRE 1101(b)(8) regarding the admissibility of hearsay concerning proof of property value at a preliminary examination.

For purposes of MRE 1101(b)(8), “ownership” of property includes the right to convey or sell that property. People v Caban, 275 Mich App 419, 422 (2007). In Caban, an out-of-court statement made by a nonexpert regarding a defendant’s right to convey a piece of property was admissible at a defendant’s preliminary examination for a crime related to the defendant’s authority to sell the property. Id. MRE 1101(b)(8) also authorizes hearsay to be admitted at a preliminary examination in a criminal case “to prove the ownership, value, or possession of — or right to use or enter — property.”