Rule 702. Testimony by Experts

• Library: South Carolina Evidence Annotated (SCBar) (2023 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

Before admitting expert testimony, the trial court must determine the following: "(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. Galloway, 436 S.C. 453, 462, 872 S.E.2d 646, 651 (Ct. App. 2022), reh'g denied (June 2, 2022), cert. granted (Jan. 12, 2023).

"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. "Before admitting expert testimony, a trial court must qualify the expert and determine whether the subject matter of the expert's proposed testimony is reliable, as required by Rule 702, SCRE." Prather, 429 S.C. at 599, 840 S.E.2d at 559. "The trial [court] should apply the Jones factors to determine reliability." State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999). The Jones reliability factors take into consideration: (1) the publications and peer reviews 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. State v. Jones, 343 S.C. 562, 573, 541 S.E.2d 813, 819 (2001). "Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate." Matter of Ridley, 433 S.C. 316, 320-21, 858 S.E.2d 165, 167-68 (Ct. App. 2021), reh'g denied (June 11, 2021).

"To be competent to testify as an expert, 'a witness must have acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony.'" State v. Franks, 432 S.C. 58, 75, 849 S.E.2d 580, 589 (Ct. App. 2020), reh'g denied (Nov. 24, 2020).

Courts are often presented with challenges on both fronts[:]qualifications and reliability. The party offering [an] expert must establish that his witness has the necessary qualifications in terms of "knowledge, skill, experience, training or education." Rule 702, SCRE. With respect to qualifications, a witness may satisfy the Rule 702 threshold yet the opponent may still challenge the amount or quality of the qualifications. It is in this latter context that the trial court properly concludes that "defects in the amount and quality of education or experience go to the weight to be accorded the expert's testimony and not its admissibility." State v. Myers, 301 S.C. 251, 256, 391 S.E.2d 551, 554 (1990). Turning to the reliability factor, a trial court may ultimately take the same approach, but only after making a threshold determination for purposes of admissibility. State v. Franks, 432 S.C. 58, 75, 849 S.E.2d 580, 589 (Ct. App. 2020), reh'g denied (Nov. 24, 2020).

[Our supreme court has] listed several factors that the trial court should consider when determining whether scientific expert evidence is reliable: (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. State v. Franks, 432 S.C. 58, 75, 849 S.E.2d 580, 589 (Ct. App. 2020), reh'g denied (Nov. 24, 2020).

"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. As part of its gatekeeping duties pursuant to Rule 702, "the trial 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." Watson, 389 S.C. at 446, 699 S.E.2d at 175. The trial court must then "evaluate the substance of the testimony and determine whether it is reliable." Id. "Reliability is a central feature of Rule 702 admissibility ...." State v. Franks, 432 S.C. 58, 74, 849 S.E.2d 580, 589 (Ct. App. 2020), reh'g denied (Nov. 24, 2020).

"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...