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(154) This appears to be the case with the post-Graat lay opinion rule, in reference to which the majority of judges of the Alberta Court of Appeal, in Lee, said: "Whatever rule there may have been against a lay witness giving opinion evidence, it has not survived the decision in Graat," (155)
(11) On the requirement that a lay witness have personal knowledge of the facts about which she is testifying, see FED.
(20) Thus, Rules 701 and 403 vest trial courts with broad discretion to determine whether evidence offered by a lay witness is inadmissible on the grounds that it presents a high risk of unreliability that may lead to an inaccurate verdict.
(50) For many years, courts admitted testimony from both lay witnesses and "experts" to identify authors of questioned documents.
As stated by the Advisory Committee note, this amendment has been made "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." The change is intended to solve the so-called smuggled expert testimony problem.
Accordingly, an internal accounting professional who testifies as a lay witness on issues based on his or her interpretation of GAAP or GAAS, and states an opinion on the applicability of an accounting or auditing standard, would have his or her opinion scrutinized under the requirements of Rule 702.
They do so because the economist, properly qualified as an expert, may testify in the form of an opinion about the amount of damages, something the lay witness may not.(6) Before the expert can so testify, however, the court must decide not only whether the expert is qualified to opine on the fact, but also whether the material about which the expert will testify will aid the jury, the trier of fact, in understanding or determining a fact in issue at the trial that is outside the normal experience of the jurors.
Rule 701 provides, in part, that a lay witness may testify in the form of an opinion or inference, if the opinion or inference is "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Fed.
All types of lay witness felt that they, were provided with insufficient information about the strange world they had been obliged to enter and complained that their contribution was under-appreciated.