From the Classroom: The Opinion Evidence Rule and its Role in Criminal Investigations (Part I of II)

18 Jun 2023
CAB00212

From the Classroom: The Opinion Evidence Rule and Criminal Investigations – Part I   
By Ray Hill    
Professor Emeritus, Santa Rosa Junior College   

This is the tenth in a series of bulletins covering the California Evidence Code and criminal investigations. The next two articles will cover the Opinion Evidence Rule as it relates to an officer, deputy or investigator giving testimony in court (140 E.C.).  

What is the Opinion Evidence Rule?  

The Opinion Evidence Rule permits a lay witness (non-expert) to give an opinion during testimony when (800 E.C.):   

1) The testimony is rationally based upon the personal knowledge of the witness;   

2) The opinion is helpful to a clear understanding of one’s testimony; and   

3) The opinion relates to one or more of the areas qualifying for opinion testimony.    

The Opinion Evidence Rule has historical roots in Holland v. Zolmer (1894) 2 Cal. 633.  

Courts Favor Its Use in Testimony  

The law favors opinion evidence if the testimony will assist the trier of fact to reach a conclusion on a disputed fact.   

Examples:  

Courts have recognized that opinion testimony from a lay witness may be helpful when the matters observed by the witness were too complex or subtle to enable the witness accurately to convey them without resulting to the use of conclusionary descriptions (Peo. v. Melton (1988) 44 Cal. 3d 713)  

A magistrate may examine a witness beforehand as to his or her ability to render an opinion and has the final decision whether an opinion can be given (802 E.C).   

The general rule is that even an experienced peace officer can only testify to matters of fact that are within his/her personal knowledge. “One of the theories expressed in the opinion rule is that witnesses may only testify to facts, leaving inferences or conclusions to the jury or court (1 Witkin Cal. Evid. 3d, 447 (1986). As fictional Los Angeles Police Sergeant Joe Friday (played by actor Jack Webb) used to say on the television series Dragnet (1951-1970) – “Just the facts ma’am, just the facts.”   

Opinions Are Sometimes Admissible    

Often, evidence of opinion or belief is inadmissible. But much like the Hearsay Evidence Rule we have covered in previous articles, there are exceptions where opinion evidence can be relevant. This is particularly true when an officer is forming probable cause to arrest or probable cause to search.  

Appearance and demeanor can qualify as Opinion Evidence testimony.  

1) “State of Emotion” descriptions  

Examples:  

  • An officer may testify that a stalking victim was “crying and trembling uncontrollably” (Peo. v. Wilkens (1993) 12 Cal. App. 4th 762)  

  • A robbery victim appeared “fearful, excited and scared” (Peo. v. Jackson (1986) 178 Cal App. 3d 697)  

  • A domestic violence suspect appeared “angry, agitated, and balled up his fists” (U.S. v. Martinez (2005) 149 F. 3d 239)  

  • A domestic battery victim appeared “frightened, afraid, fidgety, very nervous, and she was breathing heavily” (Peo. v. Higgins (1994) 26 Cal. App. 4th 250)  

  • The physical condition of a shooting victim and the tone and manner of her parting words in established the legal foundation of a Dying Declaration (1242 E.C.) (LUPC #CAB00211 – 5/13/23)  

  • “Personal size-up” of a victim or witness giving an excited utterance in establishing the legal foundation of a Spontaneous Statement (1240 E.C.) (LUPC #CAB00204) – 4/9/23)  

  • Where a victim appeared upset, kept his head down, his arms crossed, spoke in a low, sad voice (In re: D.A., 2DCA, 6/18)  

  • A frisk was justified when a detainee ducked behind a dumpster in area known for auto burglary and vehicle tampering and appeared nervous, boisterous, angry, antagonistic, “borderline combative” (In re: Michael S. (1987) 188 Cal. App. 3d 1448)  

  • An officer observed a female “very upset, crying, she had her face in her hands” and the officer could hear “angry, hostile yelling” coming from inside the house (U.S. v. Martinez (2005) 149 F. 3d 239)  

2) “Physical Characteristics Indicative of Alcohol or Drug Intoxication” descriptions   

Examples:  

  • An officer testifying as a lay witness may express an opinion that a person appeared intoxicated based on officer’s observations of defendant’s driving, conditions at an accident scene, suspect admissions, interviews with witnesses, observation of open containers in a vehicle, and demeanor Indicative of symptoms of suspected alcohol or drug use (unsteady balance, odor of suspected alcohol or marijuana on one’s breath, flushed facial complexion, slurred speech, dilation or constriction of pupils, or other physical symptoms of ingesting a controlled substance) (Peo. v. Ojeda (1990) 225Cal.App. 3d 406; Peo. v. Taylor (1957) 152 Cal. App. 2d 20).  

  • A lay opinion on intoxication during a DUI investigation can provide probable cause (“fair probability” or “substantial chance” that a person has committed a public offense in the officer’s presence (836(a)(1) P.C.).   

  • An officer may testify to the results of a “horizontal gaze nystagmus” (HGN) test showing involuntary rapid eye movement in forming probable cause to arrest for DUI (Peo. v. Joehnk (1995) 35 Ca. App. 4th1488)  

  • An officer could form an opinion on indications of opiate intoxication (11550 H&S) from unsteady gait, overall sedated appearance, droopy eyelids, scratching and itching, constricted pupils (pupilometer test) and suspected fresh injection sites  

  • An opinion is permitted on the physical indications and effects of using ecstasy (Peo. v. Becker (2010) 183 Cal. App. 4th 1151)  

But an officer cannot testify to the fact that a person is under the influence of alcohol or drugs -- this testimony would have to be given by a forensic expert. In this case there is a partnership.   

The lay officer documents investigative details and physical symptoms of intoxication, forming probable cause to arrest, and the legal taking of a breath or blood sample as incident to arrest, under authority of a search warrant or with voluntary consent. A DOJ or agency lab expert then analyzes the blood sample and testifies to the BAC or indications of drug ingestion as an expert witness.   

3) “General Physical Condition” descriptions  

Examples:   

An officer may testify that a person appeared to be injured, sick, in pain or weak. Giving an opinion when injury is an element of the corpus delicti during a child abuse, cohabitation abuse, elderly abuse, aggravated assault or aggravated battery case.  

  A domestic violence battery victim had a red mark under one eye indicative of being slapped or struck (Peo. v. Higgins (1994) 26 Cal. App. 4th 250)  

  • A victim’s face appeared bruised and swollen (U.S. v. Phillips (1998) 149 F 3d 1026)  

  • A victim had abrasions on her forearm and neck (Peo. v. Hughey (1987) 194 Cal. App. 3rd 1387)  

  • A victim in a shaken state with “fresh injuries on her forearm and face” (Davis v. Washington (2006) 547 U.S. 813)  

  • A victim’s eyes were swollen and bruised, and her left shoulder was scratched and red (Peo. v. Hernandez (1998) 19 Cal. 4th 837)  

  • A victim had a scratch on his forehead and redness under his eye (In re: D.A., 2DCA, 6/18)  

A lay opinion given on injury during a domestic violence, aggravated battery, or child abuse investigation can provide probable cause (“fair probability” or “substantial chance” that a person has committed a felony although outside an officer’s presence (836(a)(2) P.C.).   

Like an investigator’s description of physical characteristics that may indicate drug or alcohol intoxication, at trial, it would be necessary for a doctor (an expert witness) to testify to the fact that an injury had occurred. This testimony can be a result of physical examination or photographs documenting a suspected physical injury.  

Next Up:   

Opinion Evidence Rule Part II -- Quantification of Evidence, Identifying Characteristics and Physical Characteristics of Substances  

Stay Safe,    

RH