In adopting the Delaware Rules of Evidence, the Supreme Court originally accepted the recommendation of its Special Advisory Committee with respect to non-expert testimony to follow Rule 701 as adopted in Florida instead of the Federal or Uniform Rule. The Committee’s opinion was that the rule as adopted in Delaware would better control the admissibility of evidence which might be prejudicial to a party and would prevent a non-expert witness from testifying as to matters which that witness ought not to testify, such as that the driver of an automobile was negligent.111 In view of the abolition of the rule precluding a witness from offering an opinion as to the “ultimate issue,”112 there may be a question whether testimony of a witness that a party was negligent is objectionable under the Federal or Uniform rule.

In 2001, Delaware replaced former Rule 701 and adopted Federal Rule of Evidence 701.  Under this rule, non-expert testimony is permitted in the form of opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a facts in issue and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.113 The rule does is not inconsistent with prior practice, described by the Delaware Supreme Court as follows:

“The so-called opinions of ordinary witnesses are received where it is impossible for the witness to detail all the pertinent facts in regard to a subject matter in such manner as will enable persons not eyewitnesses to form an accurate judgment in regard to it. So, an ordinary witness may give an opinion or conclusions upon questions involving identity, handwriting, size, color, weight, value, time, distance, speed, visibility, audibility, physical appearances of fear, anger, excitement, intoxication, insanity, and in many other matters where it is not practicable to put the jury in possession of all the primary facts upon which the opinion is based.”114

Consistent with this, more recently non-expert witnesses have been permitted to state an opinion as to the degree of a person’s intoxication,115 as well as questions of speed116 and color.117   because of the special position of a non-expert subscribing witness to a will, such witness may and is bound to offer an opinion that the witness formed at the time as to the mental capacity of the testator, in an adversary proceeding, if the witness states the facts supporting the conclusion.118 Although such non-expert opinion testimony is admissible, the opinion of a medical expert, being more competent to form an opinion than lay witnesses, will be given greater weight.119  A police officer who is not an eyewitness to an automobile collision and not qualified as an expert in accident reconstruction may not offer lay opinion as to the cause of the collision or death.120

Non-expert witnesses are competent to testify regarding their own physical condition since they are testifying as to events affecting them or observed by them. Thus, non-expert witnesses, lacking medical training, may testify as to the general nature of their own physical condition or the state of their own health.121 A long-time drug user can identify a drug that he or she uses without being qualified as an expert.122. By contrast, a police officer generally does not have long-term experience with a given drug and so must be qualified as an expert in order to testify as to the identity of a given drug.123

A lay witness may testify as to the apparent emotional state of another person, such as a statement that a person was “scared.”124 Similarly, a lay witness may testify as to the apparent physical condition of a person, such as a statement that person appeared to have been hit more than once.125

A witness (expert or lay) may not offer an opinion, directly or indirectly, as to the credibility or veracity of any other witness.125.1

111. Former D.R.E. 701 and comment.

112. D.R.E. 704.

113. D.R.E. 701; Lagola v. Thomas, 867 A.2d 891, 896 (Del. 2005); Alexander v. Cahill, 829 A.2d 117, 121 (Del. 2003); Seward v. State, 723 A.2d 365, 372 (Del.1999). See also Dick v. Koutoufaris, C.A. No. 88C-NO-1 14, slip op. at 7, Gebelein, J. (Del. Super. Jan. 30, 1991), aff’d, 604 A.2d 390 (Del. 1992) (lay testimony describing premises involved as “dark,” “spooky,” “inadequately lit,” “unsafe” and “dangerous” permitted on ground that witnesses were unable to convey a description without testifying in terms of inferences and opinions).

114. South Atlantic S.S. Co. v. Munkacsy, 187 A. 600, 604 (Del. 1936), cert. denied, 299 U.S. 607 (1936).

115. State v. Durrant, 188 A.2d 526, 529 (Del. 1963); South Atlantic S.S. Co. v. Munkacsy, 187 A. 600, 604 (Del.), cert. denied, 299 U.S. 607 (1936).

116. Cornwell v. Ruhl, 262 A.2d 252, 254 (Del. 1970); Law v. Gallagher, 197 A. 479, 485 (Del. 1938); South Atlantic S.S. Co. v. Munkacsy, 187 A. 600, 604 (Del.), cert. denied, 299 U.S. 607 (1936). See also D.R.E. 701 comment. Note that this is limited to actual speed traveled. Opinions as to what would have been a safe speed given travelling conditions requires expert testimony. See, e.g., Yankanwich v. Wharton, 460 A.2d 1326, 1329 (Del. 1983).

117. Porter v. State, 243 A.2d 699, 702 (Del. 1968); South Atlantic S.S. Co. v. Munkacsy, 187 A. 600, 604 (Del.), cert. denied, 299 U.S. 607 (1936).

118. In re Langmeier, 466 A.2d 386, 402 (Del. Ch. 1983); In re Sharpley’s Will, 120 A. 586, 588-89 (Del. Super. 1923); Pritchard v. Henderson, 50 A. 217, 220 (Del. Super. 1901). See also Rodney v. Burton, 86 A. 826, 829 (Del. Super. 1912); South Atlantic S.S. Co. v. Munkacsy, 187 A. 600 (Del.), cert. denied, 299 U.S. 607 (1936); Lodge v. Lodge’s Will, 7 Del. 418, 2 Houst. 418, 420 (Del. Super. 1862).

119. In re Langmeier, 466 A.2d 386, 402 (Del. Ch. 1983).

120. Lagola v. Thomas, 867 A.2d 891, 896 (Del. 2005); Alexander v. Cahill, 829 A.2d 117, 121-22 (Del. 2003).

121. Tekstrom, Inc. v. Savla, C.A. No. 03-06-0033, slip op. at 2-3, Trader, J. (Del. Comm. Pls. Apr. 27, 2005).

122. Campbell v. State, 974 A.2d 156, 169 (Del. 2009).

123. Norman v. State, 968 A.2d  27, 28 (Del. 2009).

124. State v. Washington, ID No. 0104011899, slip op. at 13-15, Ableman, J. (Del. Super. Aug. 13, 2007), aff’d mem., 945 A.2d 1168 (Del. 2008).

125. Kurzmann v. State, 903 A.2d 702, 719 (Del. 2006).

125.1. Luttrell v. State, 97 A.3d 70, 78 (Del.2014); Richardson v. State, 43 A.3d 906, 910 (Del. 2012).

© 2014  David L. Finger