Rule 702. Testimony by Experts

• Library: South Carolina Evidence Annotated (SCBar) (2020 Ed.)

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Note:

The rule is identical to the federal rule [Editor's Note - The rule is not identical.], and to former Rule 43(m)(1), SCRCP, and former Rule 24(a), SCRCrimP.

Annotations Rule 702

702

Accident Reconstruction

"Accident reconstruction requires expertise." Hamrick v. State, 426 S.C. 638, 648, 828 S.E.2d 596, 601 (2019), reh'g denied (July 1, 2019).

"Accident reconstruction is a highly technical and specialized field in which experts employ principles of engineering, physics, and other knowledge to formulate opinions as to the movements and interactions of vehicles and people, under circumstances lay people—even trained officers—simply cannot understand. A law enforcement officer who attended several classes on the subject does not possess the necessary qualifications to satisfy the "qualified as an expert" element of the Rule 702 foundation." Hamrick v. State, 426 S.C. 638, 649, 828 S.E.2d 596, 602 (2019), reh'g denied (July 1, 2019).

Assist Juries

Statute which prohibits an individual from engaging in the practice of engineering in South Carolina without being licensed did not preclude out of state professional engineering expert from testifying in negligence case. Experts are intended to assist juries. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 635 S.E.2d 97 (2006).

Case Studies

State v. Cope, 385 S.C. 274, 684 S.E.2d 177 (Ct. App. 2009).

Child Abuse

Additionally, if the expert testimony is admissible under Rule 702, SCRE, the trial court must determine if its probative value is outweighed by its prejudicial effect. State v. Cartwright, 425 S.C. 81, 94, 819 S.E.2d 756, 762 (2018).

Because child abuse assessment testimony is non-scientific, the trial court must determine whether: (1) the qualifications of the expert are sufficient; and (2) the expert's testimony will be reliable. State v. Chavis, 412 S.C. 101, 106-07, 771 S.E.2d 336, 339 (2015). "There is no formulaic approach for determining the foundational requirements of qualifications and reliability in non-scientific evidence." Id. at 108, 771 S.E.2d at 339. "However, evidence of mere procedural consistency does not ensure reliability without some evidence demonstrating that the individual expert is able to draw reliable results from the procedures of which he or she consistently applies." State v. Cartwright, 425 S.C. 81, 94, 819 S.E.2d 756, 762-63 (2018).

Child Accusations

For an expert to comment on the veracity of a child's accusations of sexual abuse is improper. State v. Jennings, 394 S.C. 473, 480, 716 S.E.2d 91, 94 (2011).

Credibility Bolstering Opinions Not Allowed

"[E]ven though experts are permitted to give an opinion, they may not offer an opinion regarding the credibility of others." State v. Portillo, 408 S.C. 66, 71, 757 S.E.2d 721, 724 (Ct. App. 2014) (quoting Kromah, 401 S.C. at 358, 737 S.E.2d at 499) (alteration in original) (internal quotation marks omitted). "The assessment of witness credibility is within the exclusive province of the jury." State v. Brown, 411 S.C. 332, 343, 768 S.E.2d 246, 251-52 (Ct. App. 2015), reh'g denied (Feb. 11, 2015).

Crime Scene Analysis Testimony

"We have previously referred to crime scene analysis testimony as nonscientific expert testimony." State v. Prather, 429 S.C. 583, 840 S.E.2d 551, 558 (2020).

Dog Tracking

"[A] sufficient foundation for the admission of dog tracking evidence is established if (1) the evidence shows the dog handler satisfies the qualifications of an expert under Rule 702; (2) the evidence shows the dog is of a breed characterized by an acute power of scent; (3) the dog has been trained to follow a trail by scent; (4) by experience the dog is found to be reliable; (5) the dog was placed on the trail where the suspect was known to have been within a reasonable time; and (6) the trail was not otherwise contaminated." State v. White, 382 S.C. 265, 272, 676 S.E.2d 684, 687 (2009).

Expert Generally

"The trial court serves as the gatekeeper in the admission of all evidence presented at trial...." Watson v. Ford Motor Co., 389 S.C. 434, 456, 699 S.E.2d 169, 180 (2010). "In determining whether to admit expert testimony, the court must make three inquiries." Graves v. CAS Med. Sys., Inc., 401 S.C. 63, 74, 735 S.E.2d 650, 655 (2012). "First, the [circuit] court must determine whether the subject matter is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury." Watson, 389 S.C. at 446, 699 S.E.2d at 175. Second, the expert must have "acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter," although he "need not be a specialist in the particular branch of the field." Id. Finally, the substance of the testimony must be reliable. Id. It is this final requirement of reliability which is the central feature of the inquiry. State v. White, 382 S.C. 265, 270, 676 S.E.2d 684, 686 (2009). In analyzing the reliability of proposed expert testimony the court must consider the following factors: "(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures." Ray v. City of Rock Hill, 428 S.C. 358, 369-70, 834 S.E.2d 464, 470 (Ct. App. 2019), reh'g denied (Nov. 22, 2019).

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702, SCRE. However, "[b]efore a witness is qualified as an expert, the [circuit] court must find (1) the expert's testimony will assist the trier of fact, (2) the expert possesses the requisite knowledge, skill, experience, training, or education, and (3) and the expert's testimony is reliable." State v. Andrews, 424 S.C. 304, 316, 818 S.E.2d 227, 234 (Ct. App. 2018), reh'g denied (Sept. 20, 2018).

In determining whether to admit expert testimony, the trial court must make three inquiries: (1) whether the evidence will assist the trier of fact; (2) whether the expert has acquired the requisite knowledge and skill to qualify as an expert in that particular subject matter, and (3) whether the substance of the testimony is reliable. State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999). "Expert testimony may be used to help the jury to determine a fact in issue based on the expert's specialized knowledge, experience, or skill and is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge." State v. Jones, 423 S.C. 631, 636, 817 S.E.2d 268, 270 (2018).

"The expertise, reliability, and the ability of the testimony to assist the trier of fact are all threshold determinations to be made prior to the admission of expert testimony, and generally, a witness's expert status will be determined prior to determining the reliability of the testimony." State v. Tapp, 398 S.C. 376, 388, 728 S.E.2d 468, 474-75 (2012). "There is no exact requirement concerning how knowledge or skill must be acquired." State v. Rose, 423 S.C. 382, 392-93, 814 S.E.2d 529, 534 (Ct. App. 2018).

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702, SCRE. The circuit court must consider the following three-prong test before allowing the jury to hear expert testimony: First, the [circuit] court must find that the subject matter is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury. Next, while the expert need not be a specialist in the particular branch of the field, the [circuit] court must find that the proffered expert has indeed acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter. Finally, the [circuit] court must evaluate the substance of the testimony and determine whether it is reliable. State v. Jones, 417 S.C. 319, 327-28, 790 S.E.2d 17, 21-22 (Ct. App. 2016), reh'g denied (Aug. 18, 2016).

Under Rule 702, SCRE, a witness can be qualified as an expert if the witness has "specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." In determining a witness's qualifications as an expert, the trial court should not have a solitary focus, but rather should make a broad inquiry. J. Haynes Waters Builders, Inc., 376 S.C. at 556, 658 S.E.2d at 86. "The test for qualification of an expert is a relative one that is dependent on the particular witness's reference to the subject." Maybank v. BB&T Corp., 416 S.C. 541, 567, 787 S.E.2d 498, 511 (2016).

"All expert testimony must satisfy the Rule 702 criteria, and that includes the [circuit] court's gatekeeping function in ensuring the proposed expert testimony meets a reliability threshold for the jury's ultimate consideration." Rule 702, SCRE, provides the following: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The admissibility of scientific evidence depends upon "the degree to which the trier of...