Non-Expert: Requirement of Personal Knowledge and Opinions Drawn Therefrom

We will begin with a discussion of non-expert testimony. The proper basis of knowledge for non-expert tesitmony is quite simple: the witness must have experienced the fact personally. If the witness is called to describe what they saw, they must have observed it for themselves; if called to relate an out-of-court statement they heard, they must have heard it for themselves. So far as the rules are concerned, it doesn't matter who the witness is or what they do for a living: be they a professional witness like a police officer who observed a crime scene and collected a bloody knife, a paramedic who observed injuries on an assault victim, a neighbor who heard a gunshot at a certain time, a detective who interrogated a suspect on video, a family member recalling items of jewelry once in the possession of the burglary victim that are now missing after the crime, or a confidant to whom a suspect confessed. The first step in admitting any observation - whatever that observation may be - is proving that they are drawing their testimony from their own personal experience and knowledge. 

Rule 602 says that the witness may properly establish their own personal knowledge. This is accomplished by asking the witness whether they observed the act or object themselves. Perhaps the best way to think about this type of witness is that they are disclosing their own memory about an event. Take for example a witness who is called to say “I saw the defendant shoot the victim,” or “I heard a gunshot coming from my neighbor’s house at midnight." Since the witness is simply recounting an event, the practitioner needed only to establish that the witness is testifying about that event from their own personal experience. If the answer is yes, then the first part of the process is satisfied. The same would be true for an out-of-court statement the witness heard: before getting into any hearsay rules or predicates, the practitioner must first establish that the witness personally heard the out-of-court declarant make the statement. Again, if the answer is yes, then the first part of the process is satisfied. In both instances, whether it be something the witness saw or heard, once the proponent establishes that the basis of the witness's knowledge is their own personal experience, Rule 602 is satisfied and the practitioner can continue to the next step in the process of admissibility, establishing that the testimony is sufficiently accurate according to a constellation of rules as we'll discuss in Step 2.

We'll begin by discussing how the practitioner can successfully introduce not only a witness's observations, but also how the witness can describe for the jury their own inferences from those observations. James Fairow and 3 co-conspirators were in the process of robbing patrons at a bar. During the robbery, the bar owner tried to stop Fairow from taking money from the cash register. During the fight between the two, Fairow attempted to shoot the bar owner twice but the gun malfunctioned. Fairow then struck the bar owner in the head with the gun. One of the co-conspirators named Gary Mosby then fatally shot the owner as he fell from Fairow's blows. Fairrow and his conspirators were charged with capital murder - the intentional killing of the bar owner during the course of the robbery.

In Texas, a person can be guilty of a crime by their own conduct or by conduct for which they are criminally responsible. See Texas Penal Code 7.01. A person can be criminally responsible for a crime if they are a "Party" or "Co-Conspirator." A person is responsible as a "Party" if, acting with intent to promote or assist the commission of the offense - in Fairow, capital murder - the person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. 

It is undisputed in the case that Fairow did not fire the fatal shot. Thus, one major issue in the case was whether Fairow was criminally responsible for Mosby's conduct in killing the owner. One line of attack Fairow attempted to use during the trial to fight the "parties" theory was that Mosby didn't intentionally kill the owner when he fired the fatal shot. If jurors didn't believe that the killing was intentional, then Fairow wouldn't be guilty of Capital Murder. He would be guilty of aggravated robbery or murder. The difference between the two convictions is significant: a capital murder charge carries a punishment of either life in prison or death; both aggravated robbery and murder carry a punishment of anywhere between 5 years and life with parole. Fairow had a good piece of evidence to help them in this endeavor: a statement Mosby allegedly made immedaitely after pulling the trigger to the effect that he "didn't try to kill him." Mosby would not be testifying, so Fairow wouldn't be able to ask him if he meant to kill. Instead, Fairow sought to ask witnesses to tell the jury what Mosby said, "I didn't try to kill him." One of those witnesses was another co-defendant named Deryk Middleton. The question Fairow answers is whether Middleton can express his opinion as to Mosby's intent based on either what he saw and what he heard Mosby say.