When expert witnesses can testify in court

R. Evid. 702 except for the deletion of a comma after the word "education." The rule liberalizes the traditional common law stricture limiting expert testimony to "some science, profession, business or occupation ... beyond the ken of the average layman," McCormick §13. Hawaii decisions have tended to adhere to the traditional limitation, e.g., State v. Smith, 59 H. 565, 583 P.2d 347 (1978), where the court allowed expert medical testimony regarding the effects of LSD on human beings. Noting that the "allowance or disallowance of the testimony of an expert witness is addressed to the sound discretion of the trial court," the court in Smith established two preconditions for the receipt for expert testimony: "first, the subject matter of the inquiry must be of such a character that only persons of skill, education or experience in it are capable for forming a correct judgment as to any facts connected therewith and second, the testimony must be of a nature to aid the jury." 59 H. at 569, 583 P.2d at 350. Rule 702 requires only that the testimony be of assistance to the trier of fact. The Advisory Committee's Note to Fed. R. Evid. 702 recommends, as the test for admissibility, "whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." So understood, the shift is in degree only. The rule also sets a broad standard with respect to the scope of expert testimony. The traditional limitation to scientific, professional, or technical matters is expanded to include "other specialized knowledge" helpful to the trier of fact. Consistent with this, the determination of an expert's qualifications is similarly broad, admitting as an expert a person qualified "by knowledge, skill, experience, training, or education." Committing the determination of expert qualifications to the discretion of the court is consistent with State v. Torres, 60 H. 271, 277, 589 P.2d 83, 87 (1978), where the court said: [T]he determination of whether or not a witness is qualified as an expert in a particular field is largely within the discretion of the trial judge and, as such, will not be upset absent a clear abuse of discretion. See also State v. Murphy, 59 H. 1, 575 P.2d 448 (1978); City and County of Honolulu v. Bonded Investment Co., Ltd., 54 H. 385, 507 P.2d 1084 (1973). Determination by the court that a witness qualifies as an expert is binding upon the trier of fact only as this relates to admissibility of the expert's testimony. The trier of fact may nonetheless consider the qualifications of the witness in determining the weight to be given to his testimony. See Territory v. Adelmeyer, 45 H. 144, 363 P.2d 979 (1961). RULE 702 SUPPLEMENTAL COMMENTARY The Act 191, Session Laws 1992 amendment added the second sentence to this rule. The problem with Fed. R. Evid. 702, as adopted in 1975, and with original Haw. R. Evid. 702, patterned thereafter, was that neither of these rules nor their commentaries mentioned Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), establishing a requirement that a novel scientific development or technique "have gained general acceptance in the particular field in which it belongs" as a condition of admissibility in connection with expert testimony. The general-acceptance standard of Frye was widely recognized as a reliability check of emerging scientific developments and techniques. The criterion of Rule 702, that expert testimony "assist the trier of fact to understand the evidence," necessarily incorporates a reliability factor and thus countenances a Frye-like inquiry as an ingredient of the reliability determination. This is the holding of State v. Montalbo, 73 H. 130, 828 P.2d 1274 (1992), observing that Rule 702's assistance requirement contemplates expert testimony based upon "a sound factual foundation...an explicable and reliable system of analysis...[and having the capacity to] add to the common understanding of the jury." The reliability determination "could include the Frye test," id., but is not so limited: "[I]t is possible that a court could also consider the scientific procedure itself, as well as other evidence of the procedure's reliability." Id. Montalbo thus anticipated the present Rule 702 amendment, thereby confirming the drafters' belief that the amendment makes explicit what was formerly implicit in the assistance criterion. General acceptance in the scientific community is highly probative of the reliability of a new technique but should not be used as an exclusive threshold for admissibility determinations.