Personal Perception and Inference Lay Testimony Under FRE 701

In civil suit against jeweler for substituting an inferior clear stone on a diamond ring while resizing it, trial court erred in excluding lay deposition testimony of the plaintiff and other witnesses that the original jewel was pink in color rather than clear when it was returned; color is similar to other objects that can be addressed through lay testimony under FRE 701, in Harris v. J.B. Robinson Jewelers, __ F.3d __ (6th Cir. Dec. 8, 2010) (No. 09-1490)

Lay testimony generally addresses a witness's direct personal experience, particularly the types of things familiar in every day life. Is lay opinion admissible on an every-day occurrence, such as the perception of color? The Sixth Circuit recently considered this issue when a defendant objected to lay opinion testimony by the plaintiff about the color of a diamond on jewelry that the defendant had worked on for the plaintiff. While indicating that even if an expert witness might provide a more nuanced account of the color of diamond, this would not preclude a lay witness opining on color of an object. Under FRE 701, like "the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences."

In the case, plaintiff Harris claimed that defendant Robinson Jewelers removed a diamond on her wedding ring that she had brought to the defendant for resizing. On return of the ring, asserted the plaintiff, "her large, pink center diamond was replaced with a smaller, colorless stone." She "filed a police report alleging that her original 'fancy' diamond was replaced by Robinson with a different stone. The word 'fancy' is a term of art in the diamond industry, referring to a colored, as opposed to colorless, diamond." After filing suit in state court, the matter was removed to the federal district court and after completion of discovery, the defendants secured a summary judgment against the plaintiff. In her opposition to summary judgment, the plaintiff cited a deposition of her in which she "able to discern that her center diamond had been replaced, she stated: 'It was not the same color. It was not the same size. It was nothing like the one I took into the store that I had for 29 years.'” Harris, __ F.3d at __.

The district court granted summary judgment for the jeweler, holding that the proffered testimony was inadmissible lay opinion testimony under FRE 701. The trial judge "held that testimony regarding the color of a diamond requires specialized knowledge possessed exclusively by experts in the field." The circuit reversed and remanded the case, finding that exclusion of the plaintiff's affidavit evidence on the color of the stone was erroneous. Harris, __ F.3d at __.

The Sixth Circuit found that the plaintiff's testimony fell well within the parameters of lay opinion testimony. It was "was not offered to prove damages or the quality of her original diamond, nor to prove that the stone was truly 'pink,' as the term is used in the diamond industry. Instead, the evidence was submitted in support of plaintiff's allegation that the diamond she left with Robinson was not returned." According to the circuit, this "testimony offered by Harris regarding the perceived color of her original center diamond is not 'based on scientific, technical, or other specialized knowledge.' Rather, this testimony is based upon 'a process of reasoning familiar in everyday life,' i.e., the observation and recognition of color." As explained by the circuit:

This court has previously acknowledged a lay witness's ability to identify objects based upon personal observation. See, e.g., United States v. Strickler, No. 92-5217, 978 F.2d 1260, 1992 WL 310267, at *1 (6th Cir. Oct. 26, 1992) (unpublished table opinion) (lay witness may testify that substance was marijuana). Indeed, this court has allowed lay testimony on matters decidedly more specialized and technical than the recognition of color. See, e.g., United States v. Madison, 226 F. App'x 535, 543-44 (6th Cir. 2007) (unpublished) (lay witness may testify, based upon review of financial records, as to whether appropriate funds were available to make a down payment); Heritage Mut. Ins. Co. v. Reck, 127 F. App'x 194, 199-200 (6th Cir. 2005) (unpublished)). ... In addition, our sister circuits have recognized that lay witnesses may testify regarding matters open to the senses. See, e.g., Rushing, 185 F.3d at 512 (reversing district court's exclusion of lay witness testimony regarding the level of perceived sound); Randolph v. Collectramatic, Inc., 590 F.2d 844, 847-48 (10th Cir. 1979) (“There is uniformity among the courts that the testimony of witnesses ... is admissible if predicated upon concrete facts within their own observation and recollection that is facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts.”); Burchill v. Kearney-Nat'l Corp., Inc., 468 F.2d 384, 386 (3d Cir. 1972) (reversing district court decision excluding lay witness testimony identifying substance as rust); Aetna Life Ins. Co. of Hartford, Conn. v. Kelley, 70 F.2d 589, 593 (8th Cir. 1934) (internal quotation marks and citation omitted) (holding that a non-expert may testify to matters that are 'open to the senses')."
Harris, __ F.3d at __.


The circuit concluded that the grant of summary judgment to the defendant because the court had excluded the plaintiff;s evidence of observing the nature of the stone before and after the defendant worked on it was erroneous. The plaintiff's "testimony alone [wa]s sufficient to create a jury question regarding the alleged replacement," so summary judgment should not have been granted.

Federal Rules of Evidence
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