First and Second Districts Rule on Lay Opinions
In the past year, the appellate courts have issued rulings on lay opinions with holdings that upheld and reversed convictions. In People v. Risper, 2020 IL App (1st) 160707, the First District held that the trial court properly barred a sexual assault victim’s mother from giving her opinion that the victim was coached. However, in People v. Suggs, 2021 IL App (2d) 190420, the Second District reversed a domestic battery conviction because a police officer gave his opinion that a crime had been committed.
In Risper, supra, the defendant was charged with predatory criminal sexual assault of a child to victim N.S. N.S. reported the abuse to her mother, a social worker, and her aunt. The trial court allowed other-crimes evidence that the defendant had assaulted the victim’s cousin H.F. 2020 IL App (1st) 160707 at ¶¶6, 8.
During the 725 ILCS 5/115-10 hearing, the mother testified that she had told a defense investigator that N.S. had told her that N.S.’s aunt had told N.S. to say that the defendant had licked H.F. but not N.S. 2020 IL App (1st) 160707 at ¶10.
The state and defense both filed motions in limine attempting to bar and allow the mother to testify that the aunt told N.S. to say that the defendant had also licked H.F. 2020 IL App (1st) 160707 at ¶¶14 – 15. The defense further argued that the mother’s opinion would shed light on N.S.’s credibility. 2020 IL App (1st) 160707 at ¶15.
The trial court barred the mother from testifying about her belief that her sister had told N.S. to say that the defendant had also licked H.F. and from giving her opinion that her sister had put N.S. up to it, i.e., accusing the defendant of licking H.F. 2020 IL App (1st) 160707 at ¶16. The defendant was found guilty and appealed. 2020 IL App (1st) 160707 at ¶¶14, 21.
The First District affirmed the trial court’s barring of the mother’s testimony. 2020 IL App (1st) 160707 at ¶40. The Risper court said that the mother’s belief that her sister had N.S. make the claims about the defendant licking H.F. would have been improper lay opinion testimony because it would not have been based on personal knowledge or facts. The Risper court also rejected the defendant’s argument that the opinion was admissible because the mother had personal knowledge and observations of N.S. from being her mother. The Risper court stated that would have meant that the mother would be testifying as someone with expert knowledge of N.S. without having been qualified as an expert. 2020 IL App (1st) 160707 at ¶38.
Finally, the court noted that the mother’s belief that her sister coached N.S. to say that the defendant also abused H.F. did not automatically establish that N.S. fabricated her own abuse by the defendant. 2020 IL App (1st) 160707 at ¶39. The evidence had established that N.S. had told her mother twice about the abuse and had repeated those statements to other people. The statement about H.F. was made several months after N.S.’s initial outcry. The court concluded by noting that the H.F. statement was irrelevant to the ultimate issue at trial — whether the defendant abused N.S. — as it concerned a separate victim. Id.
In Suggs, supra, the defendant was charged with domestic battery to her mother. At trial, the mother testified that she had an argument with the defendant about an air conditioner. The mother said that she was intoxicated and slipped and fell during the argument. She further testified that she grabbed onto the defendant’s arm as she fell and received scratches from the defendant’s fingernails. The mother admitted calling 911, but said she had little recollection because she was intoxicated. She denied that the defendant had scratched her. 2021 IL App (2d) 190420 at ¶4.
The police officer who responded to the 911 call testified that he noticed a scratch on the mother’s wrist. His body camera was published at trial and showed the mother telling him that the scratch was from the defendant. On the body camera, the mother said that the defendant grabbed and pushed her. The mother never told the officer that she had been drinking, and the officer did not have any reason to believe that the mother was under the influence. 2021 IL App (2d) 190420 at ¶5.
During direct examination, the officer was asked by the state whether he had formed an opinion as to whether a crime had been committed. The officer responded that in his opinion a domestic battery had occurred. 2021 IL App (2d) 190420 at ¶6. The defendant was later found guilty of domestic battery and appealed. 2021 IL App (2d) 190420 at ¶8.
The Second District reversed and held that the officer gave an improper lay opinion about whether a crime had occurred. 2021 IL App (2d) 190420 at ¶1. The Suggs court distinguished People v. Degorski, 2013 IL App (1st) 100580, ¶¶73, 78, 86, 998 N.E.2d 637, 376 Ill.Dec. 95, in which an assistant state’s attorney was allowed to give his opinion that the defendant’s statement to the assistant state’s attorney was reliable because the assistant state’s attorney was merely recounting his opinion during the interrogation and not his opinion during the trial. The Suggs court found, though, that in its case the officer gave his opinion at the time of trial instead of his prior opinion. 2021 IL App (2d) 190420 at ¶17. The Suggs court emphasized the phrasing of the question to the officer — “And in your opinion, what crime had occurred?” — and concluded that the jury would have understood that language as referencing an opinion that the officer held when he testified. Therefore, the officer’s opinion about whether a crime had occurred was improper lay opinion. 2021 IL App (2d) 190420 at ¶18.
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