Commonwealth v. Holden 390 Pa. 221, 134 A.2d 868 (1957)
Someone bonked Smith over the head and killed her.
The police arrested Holden for Smith's murder. Smith
maintained that he wasn't at Smith's house, he was at the home of a friend
named Jones. The police took Holden to Jones' home and interviewed.
At trial, the prosecution put Jones on the witness stand
and asked him if Holden did anything unusual during the interview. Jones
responded that Holden might have winked at Jones while Jones was telling
the police that Holden was with him at the time that Smith was murdered.
A few days later Jones mentioned to a police officer out
of court that he felt the wink was Holden trying to get Jones to make up
an alibi for him.
That's a lay opinion.
At trial, the prosecution attempted to introduce Jones'
out of court statement.
Holden objected, on the grounds that the evidence was an
inadmissible opinion, not based on facts in evidence.
The Trial Judge allowed the evidence to be admitted.
The Trial Court found Holden guilty of murder, he
The Pennsylvania Supreme Court affirmed.
The Pennsylvania Supreme Court found the evidence
In a dissent it was argued that the prosecution's question
to Jones was a violation of the common law rules of evidence and should
not have been permitted.
The dissent argued that what Jones may have thought
Holden meant by the wink was purely speculative.
Since Jones had no real idea what Holden meant, or even
if Holden was winking on purpose, it should not have been construed as an
admission by the jury, and they undoubtedly felt that Holden was
admitting guilt by asking Jones to lie for him.
This case was decided under the common law. Today it would
be covered by FRE 701.