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Onstad v. Payless ShoeSource8/24/2000
y of a sexual offender's actions.
Payless objected to those questions as eliciting inadmissible lay testimony under Rule 701, M.R.Evid.
71 This Court notes that Onstad laid Rule 701 foundation that the officers' opinions sprang from "their work and experience as police officers" and that one officer testified that it is "common knowledge" that employee safety increases when two employees are present in a business instead of one. Further, the Court notes that the officers "opined that a Billings police officer would not advise a crime victim that Luplow's behavior in the first two incidents was merely that of a 'harmless pervert.' " Based upon the above foundation, this Court concludes that the District Court properly "limited the testimony within the range allowed under Rule 701, M.R.Evid., regarding lay opinions."
72 In my view, the officers' testimony as to the predictability of an escalation in severity of sexual offender's actions exceeds the scope of lay witness opinion allowed by Rule 701.
The question is whether the testimony of the officers is rationally based upon the perceptions of the officers/witnesses within the meaning of Rule 701, M.R.Evid.
73 We recently had occasion to apply Rule 701 in Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 951 P.2d 1326. In Rocky Mountain, Black, a shareholder of the corporation, sought to present scientific economic testimony as to his business' future lost profits. Noting that there was no evidence that Black had specialized skill as an economist, we affirmed the district court's refusal to allow Black to predict future lost profits.
A non-expert witness is generally limited to testifying to matters of fact. Walden v. State (1991), 250 Mont. 132, 144, 818 P.2d 1190, 1197. Any lay opinions given must be based upon the witness's own perceptions or helpful to a clear understanding of the witness's testimony or a determination of a fact at issue. Rule 701, M.R.Evid. Rocky Mountain, 286 Mont. at 291, 951 P.2d at 1331.
74 In Massman v. City of Helena (1989), 237 Mont. 234, 773 P.2d 1206, we upheld the trial court in its refusal to allow an assistant fire chief, who had not been listed as an expert witness, to testify to the ultimate effect of the fire fighting methods on the containment of the fire. We concluded that his testimony was based upon his technical training and knowledge rather than his personal perceptions:
As such, the substance of his opinion constituted an expert opinion rather than a lay witness opinion. An expert opinion generally is one "not within the range of ordinary training or intelligence." Massman, 237 Mont. at 242, 773 P.2d at 1210.
75 Our decisions in Rocky Mountain and Massman are consistent with federal decisions interpreting Rule 701, Fed.R.Evid., which has the same "personal perception" requirement as the Montana rule. See, e.g., Fireman's Fund Ins. v. Alaskan Pride Partnership (9th Cir. 1997), 106 F.3d 1465, 1468 (insurance claims manager's opinion testimony was admissible because it was based on his own perception and there was no evidence that he relied on insurance company report); Teen-Ed, Inc. v. Kimball Int'l., Inc. (3rd Cir. 1980), 620 F.2d 399, 404 (accountant was permitted to testify as lay witness based on personal knowledge of balance sheets, but not allowed to answer hypothetical questions unless he was qualified as expert); Sowell v. Butcher & Singer, Inc. (3rd Cir. 1991), 926 F.2d 289, 298-300 (testimony about average prices extrapolated from quarterly reports was properly excluded under Rule 701, Fed.R.Evid., because witness' testimony clearly was based on more than his own perceptions); T
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