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43. Should the court admit the informant's opinion testimony that the substance was cocaine?
A defendant has been charged with selling cocaine to a police informant. At trial, the alleged cocaine no longer exists, and the only evidence that the substance sold was cocaine is the informant's testimony that it tasted like cocaine and gave her a cocaine-like sensation. The informant has no formal training in identifying controlled substances.
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Under the Federal Rules of Evidence (FRE), opinion testimony by lay witnesses is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.
C is correct. If the court determines that the informant has sufficient knowledge and experience to identify the substance of cocaine, then the testimony should be admitted under FRE 701. Such non-expert opinion testimony (if supported by sufficient knowledge and experience) is rationally based on the informant's perception and would be helpful to determine whether the substance was cocaine, which is a fact in issue. Moreover, lay witnesses are typically allowed to give opinions about matters involving sense recognition, which would include the informant's testimony about the taste of the substance and experiencing a cocaine-like sensation.
A is incorrect. The informant qualifies as a lay witness who, with sufficient knowledge and experience, may testify as to his opinion regarding whether the substance is cocaine. The informant is not seeking to testify as an expert witness. Because the testimony satisfies the requirements of FRE 701, it is admissible to support the finding that the substance was, in fact, cocaine. It is for the jury to determine what weight to give the informant's opinion.
B is incorrect. The question is asking whether the informant's testimony is simply admissible, not whether it would be sufficient to make a prima facie case. As such, it is not necessary to determine whether the testimony would be sufficient for this purpose.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. It puts forth a higher standard than is necessary for determining the admissibility of lay witness testimony. It is up to a judge, not the jury, to determine the admissibility of such evidence. Once evidence has been admitted, the jury may decide how much weight to give it.