Rule 702 Testimony by Experts

Common law courts traditionally have permitted expert testimony on subjects “beyond the lay comprehension.” This rule continues the tradition with two modifications: 1) Rule 702 permits expert testimony if it would be helpful to the trier of fact in understanding evidence that is difficult, but perhaps not beyond ordinary comprehension. 2) The rule provides that an expert may provide background information to a jury without offering an opinion on any issue in the case. By allowing testimony “in the form of an opinion or otherwise,” the rule allows an expert to give testimony in the form of a dissertation on a given topic thereby allowing the trier of fact to draw his own inferences by applying the specialized knowledge to the facts of the case at hand. Since this approach avoids complaints that the expert is usurping the function of the jury, it should be welcome in many courtrooms. Indeed, it is difficult to understand why some common law authorities are reluctant to use expert evidence in this manner. If the rationale were that the trier of fact might have difficulty in drawing inferences from specialized evidence, it would not be persuasive, because it would suggest that the trier of fact is incapable of rejecting expert opinions. If expert evidence is to assist the trier of fact, the trier must always understand how the expert evidence is derived. This provision is identical to Federal Rule 702 which was broadly written to encompass fields of expertise that require “specialized” knowledge. In addition to witnesses skilled in scientific and technical matters, this rule recognizes that witnesses qualified by “knowledge, skill, experience, training, or education” in areas such as banking or even real estate values are similarly capable of aiding the trier of fact. Whether a particular case is suitable for the use of expert testimony is determined by the trial judge’s assessment of the likelihood that specialized help would assist the trier of fact. See Leavitt v. Gillaspie, 443 P.2d 61 (Alaska 1968). See also Bachner v. Rich, 554 P.2d 430 (Alaska 1976) (finding error in admission of expert testimony). Whether or not a witness qualifies as an expert is also a determination that is made by the trial judge. After a ruling that a witness does qualify, counsel for the opposing party may question the qualifications of the expert before the jury. This goes to the weight of the testimony, assessment of which is the province of the trier of fact. In deciding whether or not an expert is qualified to testify, the trial judge must be aware of the substantive law to be applied in a given case. See, e.g., Priest v. Lindig, 583 P.2d 173 (Alaska 1978) (discussing the standard of care to be employed in a medical malpractice case and the qualification of a physician to testify). For similar provisions see, Nebraska Rule 27-702, New Mexico Rule 20-4-702, and Maine Rule 702.