United States v. Hoffner - 777 F.2d 1423 (10th Cir. 1985)

Rule:

Fed. R. Evid. 701 permits the admission of lay opinion testimony provided that it meets two criteria: (1) it must be rationally based on the perception of the witness, and (2) it must be helpful to a clearer understanding of the witness' testimony or the determination of a fact in issue. The perception requirement stems from Fed. R. Evid. 602 which requires a lay witness to have first-hand knowledge of the events he is testifying about so as to present only the most accurate information to the finder of fact.

Facts:

In November of 1983, during a survey of pharmacies in the Fort Collins, Colorado, area DEA investigators were alerted to large numbers of Schedule II prescriptions being written by Dr. Hoffner. At that time a special DEA agent was assigned to the case to pose as a patient who needed diet pills. The agent was issued prescriptions by Dr. Hoffner for large amounts of Seconal, Biphetamine, and Valium over a short period of time. At trial, the government established its case against Dr. Hoffner through the testimony of the special DEA agent, several expert witnesses, and a former patient of Dr. Hoffner's who also had been issued prescriptions for large quantities of Quaalude and Ritalin. It was determined that Dr. Hoffner was charging $100.00 per visit to those who had received prescriptions for large quantities of drugs while regular patients were charged only $30.00. Patients who had received the large quantity prescriptions were also told to go to different pharmacies when filling their prescriptions to avoid suspicion. Dr. Hoffner told these patients the names of diseases for which they could say they were being treated if a druggist should ask. Dr. Hoffner testified, though, that these patients did not actually suffer from these ailments. On appeal Dr. Hoffner raises two issues: (1) whether the trial court properly excluded lay opinion testimony from three defense witnesses who sought to testify about whether or not Dr. Hoffner issued the prescriptions for a legitimate medical purpose; and (2) whether the jury was properly instructed concerning intent.

Issue:

Did the district court err in excluding the lay opinion testimony?

Answer:

No.

Conclusion:

The court determined that the rules of evidence were correctly applied by the district court in excluding the lay opinion testimony. Fed. R. Evid. 701 permits the admission of lay opinion testimony provided that it meets two criteria: (1) it must be rationally based on the perception of the witness, and (2) it must be helpful to a clearer understanding of the witness' testimony or the determination of a fact in issue. The perception requirement stems from Fed. R. Evid. 602 which requires a lay witness to have first-hand knowledge of the events he is testifying about so as to present only the most accurate information to the finder of fact. These witnesses did not overhear any conversations between the patients and Dr. Hoffner, nor did they witness any physical examinations or the actual writing of these prescriptions. Their opinions could not have been based on any concrete facts but amount only to speculative conclusions. Dr. Hoffner also contended that the jury instructions concerning intent were ambiguous, left the jury confused, and allowed the jury to convicted without realizing that specific intent should have accompanied the violation. The court found that the jury instructions, taken as a whole, correctly charged the jury and did not result in misunderstanding or confusion.