Taking Shorthand: Court of Appeals of North Carolina Finds No Problem With Lay Opinion Testimony in Rape Trial
Similar to its federal counterpart, North Carolina Rule of Evidence 701 provides that
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
That said, North Carolina courts “have long recognized that Rule 701 does not render ‘shorthand statement[s] of fact’ inadmissible.” So, what exactly is a shorthand statement of fact? Let’s take a look at the recent opinion of the Court of Appeals of North Carolina in State v. Pace, 2015 WL 1198474 (N.C.App. 2015).
In Pace, Robert Pace was charged with first-degree rape and indecent liberties with a child. At trial, the following Q&A occurred between the prosecutor and the victim’s mother:
[PROSECUTOR]: And what other changes did you observe in [the victim] that you believe are a direct result of her being sexually assaulted?
[DEFENDANT]: Objection, Your Honor.
THE COURT: Objection overruled.
[PROSECUTOR]: You can answer.
[VICTIM’S MOTHER]: She was mean. She was—she didn’t want to do things. She was—wanted to fight. She was violent. She just—all these things.
After he was convicted, Pace appealed, claiming, inter alia, that this testimony was “generally inadmissible because it states a conclusion or inference properly reserved to the jury or alternately as vouching for the credibility of a lay diagnosis of some malady about which only an expert witness would be properly qualified to opine.” The Court of Appeals disagreed, noting that
we have long recognized that Rule 701 does not render “shorthand statement[s] of fact” inadmissible….A “shorthand statement of fact” has been defined as “the instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.”
Specifically,
[a]llowance of opinions in the form of a ‘shorthand statement of fact’ is premised upon the notion that a description of all the underlying detailed facts that helped to form the witness’ opinion may be possible, but is not practical due to the inherent difficulties in articulating one’s analytical thought processes.
Applying this logic to the mother’s testimony, the court concluded that
the context surrounding the response demonstrates that the witness was merely describing the differences she observed in her daughter’s behavior after being sexually assaulted. While “a description of all the underlying detailed facts that helped to form the witness'[s] opinion may [have been] possible,” we do not believe it would be practical to require such a description….We hold that the victim’s mother’s response to the objected-to question constituted a shorthand statement of fact and therefore did not qualify as improper lay opinion testimony under Rule 701.
-CM