Admitting Lay Opinion Through A Witness's In-Court Demonstration

In Fourth Amendment civil rights suit regarding defendant police officer who killed the victim during a no-knock entry, admitting under FRE 701, lay opinion testimony by a training officer as to the defendant's use of force consistent with that training and that there was a "reasonable gap" between the defendant seeing the victim's attempt to re-arm and recognizing that the victim was incapacitated, in Noel v. Artson, __ F.3d __ (4th Cir. June 2, 2011) (No. 09–1562)

FRE 701 permits a witness to offer lay opinion testimony based on personal knowledge. Can the lay witness also offer an in-court demonstration of the principles guiding their lay opinion? The Fourth Circuit recently assessed a case involving a lay witness's use of the jury to perform a demonstration of the gap between the defendant fatally shooting the victim and appreciating the victim's incapacity and lack of threat. The witness's lay demonstration, which involved participation "by the jurors themselves," was not a "preferable" way of making "the precise point." However, its admission was at most harmless error. Noel, __ F.3d at __.

In the case, the plaintiff survivors of victim Noel charged that defendant police officer Artson entered the victim's bedroom during a "no-knock" search. The defendant admitted that upon entering, he found the victim "spinning toward him holding a revolver" and so he "immediately fired two shots, hitting [the victim] in the left shoulder and the right breast. She then slumped to the floor near the foot of the bed." The defendant testified that he ordered the victim to "drop the gun several times," that the victim did so hesitantly, and that when he saw the victim "move[ ] her hand back towards the gun," he "shot her" a third time in the chest. Coroner testimony established that the victim "might have survived the first two shots, but could not have recovered from the third shot, which pierced her heart." The only other witness of the shooting, the victim's husband, "insisted" the victim "never made any movement toward the gun" once she had dropped it. The victim's family sued the officer, claiming he violated her Fourth Amendment rights by executing the search unreasonably and with excessive force. Noel, __ F.3d at __.

At trial, the court allowed lay opinion testimony by a defense witness, Officer Rose. Although Rose was not present at the search of the Noel residence, the court permitted his testimony because he "personally trained" the defendant. At trial, Rose "testified to the training he provided Artson in 'shoot/no-shoot scenarios' and provided a demonstration used in Artson's training meant to illustrate the so-called 'reactionary gap' effect." Noel, __ F.3d at __. Ultimately, the jury found that the defendant did not violate the victim's constitutional rights in killing the victim. The plaintiffs appealed, contending admission of Rose's testimony was unwarranted.

The Fourth Circuit dismissed this contention. The Rose testimony was admissible as the witness had "personal knowledge of Officer Artson's training in this sort of scenario because Officer Rose had actually trained him" and the Rose testimony described "scenarios that were actually used in Officer Artson's training." The witness rejected the plaintiff's contention that the defendant did not need to shoot and kill the victim after she had released the weapon. Upon plaintiff's cross-examination, the court allowed the witness to "explain[ ] that even a shot to the heart would not incapacitate a person until thirty-to-sixty seconds later." The witness opined that the defendant “went above and beyond and stopped during a lethal confrontation and continued to try and get her to not go for that gun. So he went above and beyond our training.” There was no error in admitting his testimony, if for no other reason than that the plaintiff “invited the error.” (citing United States v. Neal, 78 F.3d 901, 904 (4th Cir. 1996)).

The Circuit rejected as well that the trial judge erred in allowing Officer Rose during his lay testimony:

"to demonstrate the reactionary gap effect with the jury. In this demonstration, Rose asked the members of the jury to hold their hands six inches apart while he held his even farther apart, and then asked them to clap their hands together before he could clap his. Rose explained [after jurors proved unable to clap simultaneously with the officer's clap] ... that 'you can't clap before the officer, because of [a] reactionary gap.' He further explained that in SWAT training, 'this is what I teach these folks ... if we come across someone who has a weapon that's in a low ready position, and by the time the flick of a wrist occurs and that round is fired, it's too late.'”
Noel, __ F.3d at __ (citing United States v. Neal, 78 F.3d 901, 904 (4th Cir. 1996)).

The Fourth circuit rejected that the witness's opinion testimony was an impermissible lay opinion:

because the demonstration was a training exercise that was actually used in Officer Artson's training. Assuming, however, that the method of its presentation through active jury participation was error, we hold that it was harmless. The precise point could have been demonstrated in a number of other ways that in fact would have been preferable to one involving participation by the jurors themselves, but the demonstration was a brief and minor part of the overall trial. Moreover, there was no risk that the jury would confuse Officer Rose's clapping demonstration with an attempt to recreate the deadly confrontation in the bedroom. To the contrary, Officer Rose offered 'a mere demonstration of a physical principle,' which we have recognized as unproblematic.
Noel, __ F.3d at __ (citing Gladhill v. General Motors Corp., 743 F.2d 1049, 1051 (4th Cir. 1984)).


According to the circuit, the standard by which such a demonstration was judged was provided by FRE 403:

[A]ssuming arguendo that the jury's participation in the demonstration was error, we do not think that the demonstration itself posed a substantial risk of unfair prejudice under Fed.R.Evid. 403 to the plaintiffs on the grounds that it 'was a deliberate effort by a witness and comrade of the officer on trial to gain favor with the jury.' All evidence introduced at trial attempts in some way to gain the jury's favor; otherwise a party would not offer it. To be sure, Rule 403 is concerned with 'the possibility that the evidence will excite the jury to make a decision on the basis of a factor unrelated to the issues properly before it.” But evidence with an emotional valence need only be excluded if there is 'a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.' Here, there was no indication that Officer Rose's demonstration of his training exercise had the purpose or effect of influencing the emotions of the jury or otherwise encouraging the jury to decide on an impermissible basis.
Noel, __ F.3d at __ (citing Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1134 (4th Cir. 1988); United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)). Accordingly, the circuit concluded "any error in allowing the jury to participate in the demonstration was harmless."

Federal Rules of Evidence
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