By Jerry Friedman, Esq.

Police reports in motor vehicle, criminal and traffic matters frequently include the investigating officer’s opinion as to causation, liability, and other issues. Unless the officer qualifies as an expert under  N.J.R.E. 702, these lay opinions may not be evidential.

            N.J.R.E. 701 allows for lay witness testimony in the form of opinions or inferences if it is:

• rationally based on the perception of the witness; and
•  will assist in understanding the witnesses’ testimony or determining a fact in issue.

            In a variety of circumstances, New Jersey courts have concluded that an investigating officer's lay opinion may be admissible. Courts approved this kind of testimony in State v. Locurto (that a car was speeding),  State v. Haskins (testimony regarding measurements made between site of alleged drug transaction and school property),  State v. Johnson  (footprint identification),  State v. De Luca,  Trentacost v. Brussel, (high-crime nature of neighborhood) and  State v. Perez, (voice comparison).

            Those cases reflect the well-established principle that a lay witness may offer an opinion in matters of common knowledge and observation.

However, our courts have been diligent in prohibiting lay testimony on ultimate issues which invade the province of the jury, State v. Frisby (guilt or innocence of the defendant), are not matters of common knowledge and observation, State v. Bealor (the fact of intoxication, but not the cause), based on speculation, State v. Vigliano or require specialized or technical qualifications, . Snug Harbor Realty. Co. v. First National Bank of Toms River (genuineness of handwriting).

            In the 1989 case State v. Odom, the New Jersey Supreme Court ruled that while police officers may testify as to what they perceive through their senses, only qualified experts may offer opinions “..when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson.”  The justices ruled that a  police officer’s speculative and unfounded lay causation opinion invades the province of the jury on an ultimate issue in a case.

In the 2001 case of Neno v. Clinton, the New Jersey Supreme Court noted that “The jury heard from a law enforcement officer trained in accident investigation that he believed Plaintiffs caused the accident. The jury could have ascribed almost determinative significance to that opinion, which went to the heart of the case. The improperly admitted testimony was ’clearly capable of producing an unjust result,’ R. 2:10-2, requiring reversal.”

In addition to the "perception of the witness" requirement, lay opinion testimony may not be based primarily on inadmissible hearsay. In Neno , the Court ruled that the lay opinion testimony of a police officer as to causation of a motor vehicle accident was inadmissible as it was primarily based on inadmissible hearsay statements of the witnesses.
 

“We conclude, as did the dissent below, that a police officer cannot provide an opinion at trial when that opinion is based primarily on the statements of eyewitnesses.  Any other conclusion would allow an officer to subvert the prohibition against hearsay and pass along the essence of those hearsay statements to the jury even when the officer is not permitted to testify to the substance of the witness's statements under the hearsay rule, ” the justices wrote.

In Rogalsky v. Plymouth Homes, Inc. the New Jersey Supreme Court held that a police officer’s testimony at trial as to statements made by the defendant at the scene concerning the events leading to a motor vehicle accident in which he was involved were not admissible under the “spontaneous declaration” or “res gestae” exception to the hearsay evidence rule, but rather, was a mere narration of past events in response to the police officer's questioning.
 

Trial attorneys need to consider whether a police officer’s lay opinion may assist or harm their case and act accordingly. Lawyers also need to use motions in limine when you expect that your adversary may exceed the permissible boundaries of such testimony. Considering the weight jurors may ascribe to the opinion of police officers, a deposition exploring their qualifications and the basis for their opinions is essential in supporting a motion in limine to challenge the opinion as inadmissible hearsay.

If you think an officer’s opinion testimony can be helpful, do not hesitate to introduce it, especially if the testimony can be supported by their training, experience and rational observations.

Jerry Friedman, Esq. is a solo practitioner in Marlton and Of  Counsel to Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.  He specializes  in representing injured motorcyclists. He has lectured on  handling motorcycle accidents at the  Boardwalk Seminar^® and Meadowlands Seminar. He can be reached at jerryfriedman5656@gmail.com or at 609-654-6075.