Vol. 7, No. 3, No. 37. EXPERTS AND THE NEW RULES OF EVIDENCE.

• Author: By Justin S. Kahn

South Carolina Lawyer

1995.

Vol. 7, No. 3, No. 37.

EXPERTS AND THE NEW RULES OF EVIDENCE

37EXPERTS AND THE NEW RULES OF EVIDENCEBy Justin S. KahnThis article discusses expert testimony in general and highlights the use of learned treatises under the new South Carolina Rules of Evidence (SCRE). As the state evidentiary rules are based on the federal rules and there have been no decisions interpreting the state rules, some federal authorities will be cited.

EXPERTS GENERALLY

When an expert is to testify, pursuant to SCRE Rules 104 and 702, the trial judge must determine whether the expert is proposing to testify about scientific, technical or other specialized knowledge that will assist the trier of fact. The trial judge's discretion as to admissibility of expert witness testimony is the same whether the case is criminal or civil. Gooding v. St. Francis Xavier Hospital, S.C. ___, 454 S.E.2d 328, 331 (Ct. App. 1995). Expert testimony is not limited to scientific or technical areas, but rather includes all areas of specialized knowledge, such as bankers, carpenters and auto mechanics. M. Graham, Federal Practice and Procedure: Evidence § 6642 at 244 (1992).

LAY VERSUS EXPERT TESTIMONY

Expert and lay witness testimony differ in two major ways: knowledge and opinion.

Knowledge. Any witness may testify about a matter of which he has personal knowledge after evidence of that is first introduced. SCRE, Rule 602. There is an exception for experts, which is discussed below.

The new rules have changed the scope and use of a learned treatise.

Opinion. A lay witness can testify in the form of opinion or inference if it is rationally based on the witness' perception, is helpful to a clear understanding of the witness' testimony or determination of a fact in issue and does not require special knowledge, skill, experience or training. SCRE, Rule 701 and see Lyles v. Quantum Chemical Co. (Emery) S.C. _, 434 S.E.2d 292 (Ct. App. 1993) (lay testimony may support impairment rating in workers' compensation case); Panhorst v. Panhorst, 301 S.C. 100, 103, 390 S.E.2d 376, 378 (Ct. App. 1990) (lay witness who has special knowledge and first hand experience can testify about sexual impotence of adulterous husband); Carter v. Anderson Memorial Hospital, 284 S.C. 229, 233-34, 325 S.E.2d 78, 81 (Ct. App. 1985) (expert medical testimony not necessary to opine that when x-ray machine fell on plaintiff he experienced pain and suffering and disability related to work); Bessinger v. DeLoach, 230 S.C. 1, 94 S.E.2d 3 (1956) (issues related to burns in patient's mouth by substance applied by dentist is simple enough for the understanding of a jury of laymen to be presented without experts).

Unless the court requires otherwise, an expert can testify as to his or her opinion or inference without giving reasons or without first testifying about the underlying facts or data. SCRE, Rule 705. Experts may give opinions about matters perceived by or made known to them, even if the facts and data relied on would not be admissible, if a type reasonably relied on by experts in the particular field in forming opinions or inferences on the subject. SCRE, Rule 703. See also State v. Franklin, S.C. _, 456 S.E.2d 357 (1995) (psychiatrist for prosecution could base opinion on reports prepared by persons who had examined the defendant); Howie v. PYA Monarch, Inc., 288 S.C. 586, 595, 344 S.E.2d 157, 162 (Ct. App. 1986) (in part, psychologist expert relied upon information received from the patient and patient's family). The judge may accept the expert's view of "reasonably relied upon" in determining whether that standard is met. See McCormick on Evidence, 4th Ed. (1992) § 15 at 24.

EXPERT OFFERED

Assist the trier of fact. If the expert's testimony will help the trier of fact understand the evidence or determine a fact...