Expert Opinion at the Federal

Expert Opinion

At the federal level, expert testimony is guided by Rules 702-706 of the Rules of Evidence. Rule 702 (Testimony by Experts) states that the witness must qualify as an expert. Rule 703 states that the testimony must be based on methods perceived as being expert, and asserts that evidence cannot be excluded if its probable value outweighs its potential prejudicial effect. Rule 704 represents an opinion on ultimate issue. Rule 705 states that an expert may testify without divulging the facts underlying the opinion. Rule 706 states that a court may appoint its own experts (Cornell University, 2009)

In North Carolina, the same rules apply (702-706, Article 7). Rule 702 is far more extensive than the federal statute. In North Carolina, the expanded Rule 702 has specific provisions for medical malpractice suits, a reflection of state jurisdiction in such matters. Rule 703 omits the federal clause about probative value outweighing prejudicial effect. Rule 704 omits the federal clause (b) with respect to witnesses testifying about the mental state or condition of a defendant. Rule 705 adds that there shall be no requirement to provide expert testimony in response to a hypothetical question. Rule 706 is identical to the federal statute.

In South Carolina, Rule 702 is essentially similar to the federal law, albeit less detailed. Rule 703 is similar to the federal law. As with North Carolina though, South Carolina's Rule 703 omits the federal clause about probative value outweighing prejudicial effect. Rule 704 is identical to that of North Carolina. That is to say, it omits subsection (b) of the federal rule, pertaining to witnesses testifying about the mental state of the defendant. Rule 705 is identical to the federal rule. Unlike North Carolina, there is no clause about hypothetical questions. In South Carolina, in contrast to the federal law and to North Carolina law, there is no Rule 706, pertaining to court-appointed witnesses.

The federal statutes with respect to witness testimony are the most extensive of the three measured. In some instances, the state statutes are based on older versions of the federal statute, which explains the omissions of some clauses. North Carolina has added an extensive section to Rule 702 in order to govern the use of expert testimony in cases of medical malpractice. While this is a matter of state jurisdiction, South Carolina has taken no steps towards implementing these testimony regulations to its own Article VII.

One difference between the federal statute and those in both of the Carolinas is that the federal statute has retained the clause in Rule 703 that states "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." This clause was in Rule 403 during the Christophersen v Allied-Signal days, but the federal code has moved it to Rule 703. In South Carolina this clause remains in Rule 403, as it does in North Carolina as well.