Alaska R. Evid. 702 commentary

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.