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

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

This is the eleventh in a series of bulletins covering the California Evidence Code and criminal investigations. We continue a review of the Opinion Evidence Rule (800 E.C.) as it relates to an officer, deputy or investigator giving testimony in court (140 E.C.).  

In Part I, we covered giving lay opinions relating to observations about a subject’s personal appearance and demeanor – their state of emotion, potential intoxication and apparent injury. 

When within the personal knowledge of a lay witness (a non-expert) and helpful to the clear understanding of one’s testimony, an opinion can be offered in these additional areas. 

Additional Circumstances Where a Lay Opinion is Admissible 

Quantification of Evidence – Measurement, Speed, Size, Time, Distance, Value   

Examples: 

• An opinion on fair market value of suspected stolen property when making a probable cause felony arrest (836(a)(3) P.C.) for grand theft/receiving stolen property (+$950) or property damage for vandalism (+$400). 

• An officer’s sensory observation and estimation of speed when there was reasonable opportunity to view a vehicle in motion (Peo. v. Sullivan (1991) 234 Cal. App. 3d 58) 

• Describing the speed of an automobile, streetcar or train as “unusual,” “very fast,” “much faster than another” or “faster than the ordinary rate” (1 Witkin Cal. Evidence 3d 1986) 

• In a vehicular manslaughter case, “I kind of thought he wasn’t driving with the best control of his vehicle,” “He passed me like a bat out of hell in a crazy place” and speed estimates ranging from “50-80 MPH” (Peo. v. Van Wells (1995) 31 Cal. App. 4th 1276) 

• “It has long been the case that an officer’s visual examination can supply probable cause to support a traffic stop for speeding in appropriate circumstances,” (U.S. v. Ludwig (2011) 641 F. 3d 1243) 

• A detention for speeding (35 to 40 MPH in a 25 MPH ....

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