This rule is identical with Fed. R. Evid. 701. The rule retains the common-law requirement that lay opinion be based upon firsthand knowledge, McCormick §10, but liberalizes the traditional doctrine of "strict necessity," which allowed such testimony only where "all the facts cannot be placed before the jury with such clearness as to enable them to draw a correct inference...." Tsuruoka v. Lukens, 32 H. 263, 264 (1932). The present rule adopts in its place the more liberal "convenience" test, McCormick §11, allowing such testimony when it is "helpful" to the trier of fact in determining or clarifying facts in issue.
The "strict necessity" doctrine has been construed to allow lay opinions concerning pain and suffering, see Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 113, 412 P.2d 669, 691 (1966). Such a result is of course consistent with this rule. The witness may be required to specify the facts upon which the opinion is based, see Sumner v. Jones, 22 H. 23 (1914).
Several considerations support substitution of the "convenience" standard for the "strict necessity" test. As the Advisory Committee's Note to Fed. R. Evid. 701 puts it: "[N]ecessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration." The committee also cited the "practical impossibility" of distinguishing fact from opinion.
The danger that such liberalization might open the door to factually unsupported, conjectural, or biased inferences is averted by the explicit requirement of firsthand knowledge, by implicit judicial discretion under the rule to exclude opinions for lack of "helpfulness," and by express judicial discretion under Rule 403 supra, to exclude because of the danger of prejudice, confusion, or misleading the jury. The adversary system itself provides still another safeguard, allowing detailed cross-examination on the factual bases of such opinions.
