Alabama Rules of Evidence

Rule 701. Opinion testimony by lay witnesses.

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

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Traditional common law, including that in Alabama, generally has precluded a lay witness from giving an opinion. The law has required that the witness place all the facts before the trier of fact, thus placing the trier of fact in just as good a position as the witness to draw a conclusion in the matter. Indeed, it has been said that permitting a lay witness to give an opinion preempts the role assigned to the jurors. Boatwright v. State, 351 So.2d 1366 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence § 127.01(2) (4th ed. 1991).

The rule excluding opinion evidence has been under consistent attack through the years. Professor Morgan argued that it merely furnishes the basis for both foolish appeals and foolish reversals. E. Morgan, Basic Problems of Evidence 220 (1963). Dean Wigmore argued for its total abolition. 7 J. Wigmore, Wigmore on Evidence § 1929 (Chadbourn Rev. 1978). Criticism of this rule finally led to Fed.R.Evid. 701, which vests the trial court with discretion to permit lay witnesses to give opinions but only under certain conditions.

Alabama Rule of Evidence 701, like its identical counterpart under the Federal Rules of Evidence, permits lay witnesses to give opinions whenever two conditions are met. First, the opinion must be rationally based upon the perception of the witness. This is no more than a restatement of the “firsthand knowledge rule,” found in Ala.R.Evid. 602, tailored to opinions. No lay witness may give an opinion based upon facts that the witness did not personally observe. Second, a lay witness with firsthand knowledge may give an opinion only if it is helpful to a clear understanding of the witness’s testimony or to the determination of a fact in issue. A fair amount of discretion is vested in the trial judge regarding the determination of whether opinions are helpful. It is clear, however, that opinions should be excluded as not being helpful if they are “meaningless assertions which amount to little more than choosing up sides.” Fed.R.Evid. 701 advisory committee’s note. Assertions that one is “liable,” “guilty,” or “at fault” generally would not be helpful and thus would properly be excluded. See United States v. Ness, 665 F.2d 248, 249-50 (8th Cir.1981) (proper to preclude opinion that defendant had no intent to “hurt” the bank from which he allegedly misappropriated funds); United States v. Baskes, 649 F. 2d 471, 478 (7th Cir.1980), cert. denied, 450 U.S. 1000 (1981) (holding it not helpful for a witness to be allowed to testify that conduct was “unlawful” or “wilful”); Scheib v. Williams-McWilliams Co., 628 F.2d 509, 511 (5th Cir.1980) (trial court did not abuse its discretion by precluding lay opinion that a dredge tender was “dangerous”).

The common law of Alabama has seen the evolution of many exceptions that allow opinion evidence notwithstanding the general rule of exclusion. The committee contemplates that most, if not all, of those exceptions will be recognized under Rule 701, under the analysis that in those situations the opinions are “helpful” to the trier of fact. Alabama has long recognized, for example, that a lay witness may give an opinion when the witness is unable to relate the facts to the jurors well enough to place the jurors in as good a position as the witness was in to reach an opinion or to draw a conclusion. Some would call this the “collective facts” exception to the opinion evidence rule. See Matthews Bros. Constr. Co. v. Lopez, 434 So.2d 1369 (Ala.1983) (lay witness permitted to give opinion as to freshness or age of skidmarks); Sanford v. Sanford, 355 So.2d 365 (Ala.1978) (lay opinion as to value); Jones v. Moore, 322 So.2d 682 (Ala.1975) (lay opinion as to another’s mental capacity); Burke v. Tidwell, 211 Ala. 673, 101 So. 599 (1924) (lay witness allowed to testify that another was “drunk”); C. Gamble, McElroy’s Alabama Evidence §§ 127.01(3), 128.01 (lay witness’s opinion that another was sane), 128.02 (lay opinion that another was insane), 128.03 (attesting witness’s opinion as to mental capacity of a testator), 128.10(2) (admissibility of lay opinion as to the actual bodily condition of another), 128.10(3) (admissibility of lay opinion as to the apparent bodily condition of another), 128.10(4) (lay opinion as to one’s own bodily condition) (4th ed. 1991).

Rule 702. Testimony by experts.

(a)   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.

(b)   In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:

(1)   The testimony is based on sufficient facts or data;

(2)   The testimony is the product of reliable principles and methods; and

(3)   The witness has applied the principles and methods reliably to the facts of the case.

The provisions of this section (b) shall apply to all civil state-court actions commenced on or after January 1, 2012. In criminal actions, this section shall apply only to nonjuvenile felony proceedings in which the defendant was arrested on the charge or charges that are the subject of the proceedings on or after January 1, 2012. The provisions of this section (b) shall not apply to domestic-relations cases, child-support cases, juvenile cases, or cases in the probate court. Even, however, in the cases and proceedings in which this section (b) does not apply, expert testimony relating to DNA analysis shall continue to be admissible under Ala. Code 1975, § 36-18-30.

(c)   Nothing in this rule is intended to modify, supersede, or amend any provisions of the Alabama Medical Liability Act of 1987 or the Alabama Medical Liability Act of 1996 or any judicial interpretation of those acts.

[Amended 11-29-2011, eff. 1-1-2012.]

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Historically, expert witnesses have been permitted to give opinions only upon subjects that are held to be beyond the understanding of the average layperson. The theory underlying this common law principle is that the jurors, on subjects of common knowledge, are just as qualified to draw their own conclusions and it would be a preemption of their role and function to allow an expert to testify as to those subjects. See Ala. Code 1975, § 12-21-160 (superseded by adoption of the present rule). Rule 702, identical to the corresponding Federal Rule of Evidence, changes the focus from whether the subject of the testimony is beyond common understanding to whether the expert’s opinion or testimony will assist the trier of fact. Under this rule it is possible that an expert opinion or testimony on a question of common knowledge would be admitted by the trial judge as helpful to the trier of fact.

The phrase “assist the trier of fact,” used by Rule 702 as the threshold test for expert testimony, is not new to Alabama. Alabama historically and generally has refused expert testimony or opinion on a subject that is within the understanding of the average layperson. Recent decisions dealing with expert testimony on such subjects, however, have departed from this position and in speaking of expert testimony have increasingly used the words “helpful to” or “assist” the trier of fact. See, e.g., Baker v. Edgar, 472 So.2d 968 (Ala.1985) (expert opinions admitted because they would “greatly assist the members of the jury”); Price v. Jacobs, 387 So.2d 172 (Ala.1980) (using the term “helpful” in ruling on admissibility of expert opinion); Glaze v. Tennyson, 352 So.2d 1335 (Ala.1977) (declaring that the test is whether the expert opinion will aid the trier of fact). See also C. Gamble, McElroy’s Alabama Evidence § 127.01(5) (4th ed. 1991).

Rule 702, by using the term “or otherwise,” recognizes the admissibility of expert testimony in nonopinion form. The advisory committee’s note to Fed.R.Evid. 702 states:

“Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.”

Much discretion remains vested in the trial judge to determine whether a proffered witness qualifies as an expert. See Griffin v. Gregory, 355 So.2d 691 (Ala.1978) (observing that whether to allow a witness to testify as an expert is largely in the trial court’s discretion and that the exercise of this discretion will not be disturbed except for abuse). The applicable law on this subject should remain largely as it was before the adoption of Rule 702. For example, under Rule 702 “qualification” should continue to be defined broadly, so that one may gain an expertise through practical experience as well as through formal training or education. See, e.g., International Telecommunications Sys. v. State, 359 So.2d 364 (Ala.1978) (recognizing that experience and practical knowledge, as fully as formal education, qualify one to make technical judgments).

Experts often base their opinions and other testimony upon the results of scientific tests. Rule 702 does not undertake to answer the question whether such tests possess sufficient reliability to be admissible. The standard applied in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), has become the standard adopted by Alabama. See Ex parte Perry, 586 So.2d 242, 247 (Ala.1991). Scientific tests are admissible only when they have gained general acceptance in the particular field. Kent v. Singleton, 457 So.2d 356 (Ala.1984); Ex parte Dolvin, 391 So.2d 677 (Ala.1980). Further development of Alabama law on this subject is left to the case law. See C. Gamble, McElroy’s Alabama Evidence § 490.01 (4th ed. 1991).

As under preexisting Alabama law, both questions – whether a witness is qualified as an expert and whether, if so qualified, that witness may give expert opinion or testimony on the subject in question – are left largely to the discretion of the trial judge. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

The committee, in recommending this Rule 702, gave due consideration to the latest suggested amendment to Fed.R.Evid. 702, one proposed in 1991 by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The committee agreed that there are problems in the present use of expert witnesses but that the proposed amendment to the federal rule raises more questions than it answers. See J. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound: It Should Not be Amended, 138 F.R.D. 631 (1991). Consequently, the committee did not recommend incorporating the terms of that proposed federal amendment into Ala.R.Evid. 702.

Advisory Committee’s Notes to Amendment to Rule 702 Effective January 1, 2012

Rule 702 was amended in response to a 2011 amendment to § 12-21-160, Ala. Code 1975, see Act No. 2011-629, Ala. Acts 2011, which establishes new admissibility criteria for expert scientific testimony. Act No. 2011-629 provides:

”Section 1. Section 12-21-160 of the Code of Alabama 1975, is amended to read as follows:

Ӥ 12-21-160.

”(a)   Generally. 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.

”(b)   Scientific evidence. In addition to the requirements set forth in subsection (a), expert testimony based on a scientific theory, principle, methodology, or procedure is only admissible if:

”(1)   The testimony is based on sufficient facts or data,

”(2)   The testimony is the product of reliable principles and methods, and

”(3)   The witness has applied the principles and methods reliably to the facts of the case.

”Section 2. Nothing in this act shall modify, amend, or supersede any provisions of the Alabama Medical Liability Act of 1987 and the Alabama Medical Liability Act of 1996, commencing with Section 6-5-540 of the Code of Alabama 1975, et seq., or any judicial interpretation thereof.

”Section 3. This act shall apply to all civil state court actions commenced on or after the effective date of this act. In criminal actions, this act shall only apply to non-juvenile felony proceedings in which the defendant that is the subject of the proceeding was arrested on the charge that is the subject of the proceeding on or after January 1, 2012. This act shall not apply to domestic relations, child support, juvenile, or probate cases.

”Section 4. The provisions of this act, where inconsistent with any Alabama Rule of Civil Procedure, Alabama Rule of Criminal Procedure, or Alabama Rule of Evidence, including, but not limited to, Ala. R. Evid. 702, shall supersede such rule or parts of rules.

“Section 5. This act shall become effective on January 1, 2012.”

To promote uniformity and avoid confusion, Rule 702 has been amended to adopt the admissibility standard for scientific evidence set forth in Section 1 of Act No. 2011-629, amending § 12-21-160. To promote clarity, this amendment divides Rule 702 into subsections. The text of Rule 702, as it read before this amendment, has been placed unchanged in section (a), and the new admissibility standard for scientific evidence is set forth in section (b).

Section (a) Generally. The amendment merely places the text of the former rule in a separate section. No changes have been made to the text, and preexisting judicial authority interpreting Rule 702 remains applicable to Rule 702(a).

Section (b) Scientific Evidence. The language in subsections (b)(1), (b)(2), and (b)(3) is identical to language added to Rule 702 of the Federal Rules of Evidence in response to the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The amendment adopts the approach taken in Daubert for determining the admissibility of scientific evidence. Consequently, the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), general-acceptance test has been supplanted, with few exceptions. The amendment requires trial judges to act as “gatekeepers” and determine whether the scientific evidence is both ”relevant and reliable.” See Daubert, 509 U.S. at 597.

The Daubert test is not new to Alabama. By statute, the admissibility of scientific expert testimony based on DNA analysis has been governed by the test set forth in Daubert since 1994. See Ala. Code 1975, § 36-18-30. This amendment is not intended to effect any change in the line of well developed judicial authority that has applied and interpreted the Daubert test pursuant to § 36-18-30. See generally Turner v. State, 746 So. 2d 355 (Ala. 1998) (discussing § 36-18-30 and the requirements of the Daubert test); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 490.01(11) (6th ed. 2009)(discussing the admissibility of DNA evidence under the Daubert standard). The admissibility criteria imposed generally on all scientific evidence by Rule 702(b) is the same Daubert criteria imposed on DNA evidence by § 36-18-30.

Court Comment to Amendment to Rule 702 Effective January 1, 2012

The Advisory Committee recommended to the Court that the legislative exceptions set out in Section 3 of Act No. 2011-629, Ala. Acts 2011, not be incorporated into the amendment to Rule 702. The Court, however, disagreed and incorporated those exceptions into Rule 702(b). By doing so, the Court did not intend to affect the applicability of Ala. Code 1975, § 36-18-30, which provides that the admissibility of scientific expert testimony based on DNA analysis is governed by the test set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and added a sentence to clarify that § 36-18-30 still governs the admissibility of scientific expert testimony based on DNA analysis, even in domestic-relations cases, child-support cases, juvenile cases, and cases pending in the probate courts.

The provisions of section (a) apply in all cases where Rule 702 was previously applied. The provisions in section (b), however, do not apply in all cases. Except as otherwise noted in the rule, they apply in all civil state-court actions commenced on or after January 1, 2012. In criminal actions, section (b) applies only in nonjuvenile felony proceedings in which the defendant who is the subject of the proceeding was arrested on the charge that is the subject of the proceeding on or after January 1, 2012. In addition, except as to expert testimony governed by § 36-18-30, the provisions of section (b) do not apply to testimony in domestic-relations cases, child-support cases, juvenile cases, or cases in the probate court.

The provisions of the Alabama Medical Liability Act of 1987 and the Alabama Medical Liability Act of 1996, § 6-5-540 et seq., Ala. Code 1975, and any judicial interpretation of those provisions remains unaffected by this amendment.

Note from the reporter of decisions: The order amending Rule 702, Alabama Rules of Evidence, effective January 1, 2012, and adopting the Advisory Committee’s Notes to Amendment to Rule 702 Effective January 1, 2012, and the Court Comment to Amendment to Rule 702 Effective January 1, 2012, is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d.

Rule 703. Bases of opinion testimony by experts.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. 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

[Amended 8-15-2013, 3ff. 10-1-2013.]

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Experts may acquire the facts, upon which they base their opinions and testimony, by firsthand observation. This would be exemplified by a treating physician who is called to testify. Armstead v. Smith, 434 So.2d 740 (Ala.1983); Jones v. Keith, 223 Ala. 36, 134 So. 630 (1931). However, experts historically have been exempted from the requirement of possessing firsthand knowledge; indeed, experts are the only witnesses so exempted. The common law has recognized the familiar hypothetical question as a primary source from which the expert could gain a knowledge, albeit secondhand, of the facts. Alabama Power Co. v. Robinson, 447 So.2d 148 (Ala.1983). Under Rule 703, two additional sources exist for the facts upon which the expert’s opinion may be based. First, the expert may attend the trial and there be made privy to the facts upon which his or her testimony is to be based. This means of being furnished the facts, insofar as not requiring a hypothetical question, is new to Alabama practice. See Porter v. State, 135 Ala. 51, 33 So. 694 (1903); Gunter v. State, 83 Ala. 96, 3 So. 600 (1888). Rule 703 also provides, however, that the facts may be made known to the expert outside the trial or hearing at which the expert is testifying. This includes data presented to the expert by means other than personal perception, such as through the opinions, records, or reports of others.

Rule 703 leaves unaffected the preexisting Alabama law requiring that the facts or data relied upon by the expert, and gotten by the expert other than by firsthand knowledge, generally must be admitted into evidence. See C. Gamble, McElroy’s Alabama Evidence § 127.01(5) (4th ed. 1991). An expert generally may not, for example, base an opinion upon inadmissible hearsay. Ex parte Wesley, 575 So.2d 127 (Ala.1990). See also T.G.S. v. D.L.S., 608 So.2d 743 (Ala.Civ.App.1992); C. Gamble, McElroy’s Alabama Evidence § 100.01 (4th ed. 1991). Rule 703 is taken verbatim from Fed.R.Evid. 703, but it omits that portion of the federal rule providing that an expert may base an opinion upon inadmissible evidence if it is of a type reasonably relied upon by experts in the particular field in forming opinions. See Fed.R.Evid. 703. However, it should be emphasized that the Alabama case law generally precluding an opinion based upon the unadmitted records or reports of others does recognize exceptions. See, e.g., Ex parte Wesley, 575 So.2d 127, 129 (Ala.1990) (acknowledging such exceptions); Sidwell v. Wooten, 473 So.2d 1036 (Ala.1985) (expert allowed to give opinion as to value based at least in part upon hearsay); Jackson v. State, 412 So.2d 302 (Ala.Crim.App.1982) (permitting coroner to base opinion as to cause of death at least partially upon unadmitted toxicologist’s autopsy report). See also C. Gamble, McElroy’s Alabama Evidence § 130.01 (4th ed. 1991).

Advisory Committee’s Notes to Amendment to Rule 703 Effective October 1, 2013

Rule 703 has been amended by adding a second and third sentence to the former rule. The two new sentences are taken verbatim from Rule 703 of the Federal Rules of Evidence and make the Alabama Rule identical to its federal counterpart. The amendment abandons the traditional common-law rule that required information upon which an expert relied in forming an opinion to be admitted into evidence, but which also recognized exceptions. See Swanstrom v. Teledyne Continental Motors, Inc., 43 So. 3d 564, 579 (Ala. 2009) (noting such exceptions and modifications); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 127.02(5) (6th ed. 2009) (”Alabama’s rule, precluding expert testimony based on inadmissible facts or data has ... been judicially breached in certain situations.”). Cf. Johnson v. Nagle, 58 F. Supp. 2d 1303, 1358 n.46 (N.D. Ala. 1999) (describing Alabama law as “confusing”).

Abandonment of the common-law rule does not mean that expert opinions based on otherwise inadmissible evidence will be automatically admitted. As amended, the second sentence of Rule 703 provides: ”If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” The phrase “reasonably relied upon” allows an expert to base an opinion on information not admitted into evidence only if other experts in the field normally and customarily rely on such information in forming opinions, and only if such reliance is reasonable. See United States v. Steed, 548 F.3d 961, 975 (11th Cir. 2008) (”’Rule 703, however, is not an open door to all inadmissible evidence disguised as expert opinion.’ ... [U]nder the Rule, ’a law enforcement officer testifying as an expert witness may rely on information he received from other people if such sources of information were regularly relied upon by experts in his field.’” (citations omitted)); Moore v. Ashland Chem., Inc., 126 F.3d 679, 691 (5th Cir. 1997) (”In determining the preliminary question of whether reliance by the expert is reasonable, the party calling the witness must satisfy the court, both that such facts, data or opinions are of the type customarily relied upon by experts in the field and that such reliance is reasonable.”).

In many cases the result reached under the amended rule will be the same as under common-law rule. For example, Alabama courts recognized an exception to the common-law rule that allowed admission of expert opinion testimony based on hearsay if the hearsay was “’”customarily relied on by experts and likely to be trustworthy....“’” Swanstrom v. Teledyne Continental Motors, Inc., 43 So. 3d at 579 (emphasis omitted). The amendment is consistent with this exception. Hearsay that is not trustworthy would not satisfy the ”reasonably relied upon” requirement of the amended rule.

The last sentence of Rule 703 is identical to the sentence added to Federal Rule 703 by amendment in 2000, and it has been added for the same reason—to emphasize that when an expert reasonably relies on otherwise inadmissible information to form an opinion the underlying information is not admissible simply because the expert’s opinion is admissible. The advisory committee’s notes accompanying the 2000 amendment to Federal Rule 703 provide an explanation of how the amendment to the federal rule should be interpreted, which applies equally to the amendment to Ala. R. Evid. 703.

”When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert’s opinion, a trial court applying this Rule must consider the information’s probative value in assisting the jury to weigh the expert’s opinion on the one hand, and the risk of prejudice resulting from the jury’s potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the expert’s opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes. See [Ala. R. Evid.] 105. In determining the appropriate course, the trial court should consider the probable effectiveness or lack of effectiveness of a limiting instruction under the particular circumstances.

”The amendment governs only the disclosure to the jury of information that is reasonably relied on by an expert, when that information is not admissible for substantive purposes. It is not intended to affect the admissibility of an expert’s testimony. Nor does the amendment prevent an expert from relying on information that is inadmissible for substantive purposes.

”Nothing in this Rule restricts the presentation of underlying expert facts or data when offered by an adverse party. See [Ala. R. Evid.] 705. Of course, an adversary’s attack on an expert’s basis will often open the door to a proponent’s rebuttal with information that was reasonably relied upon by the expert, even if that information would not have been discloseable initially under the balancing test provided by this amendment. Moreover, in some circumstances the proponent might wish to disclose information that is relied upon by the expert in order to ’remove the sting’ from the opponent’s anticipated attack, and thereby prevent the jury from drawing an unfair negative inference. The trial court should take this consideration into account in applying the balancing test provided by this amendment.

”This amendment covers facts or data that cannot be admitted for any purpose other than to assist the jury to evaluate the expert’s opinion. The balancing test provided in this amendment is not applicable to facts or data that are admissible for any other purpose but have not yet been offered for such a purpose at the time the expert testifies.

”The amendment provides a presumption against disclosure to the jury of information used as the basis of an expert’s opinion and not admissible for any substantive purpose, when that information is offered by the proponent of the expert. In a multi-party case, where one party proffers an expert whose testimony is also beneficial to other parties, each such party should be deemed a ’proponent’ within the meaning of the amendment.”

Fed. R. Evid. 703 (Advisory Committee’s Notes).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 704. Opinion on ultimate issue.

Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.

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Evidence of an opinion that goes to an ultimate issue in the case is inadmissible, whether offered by a lay witness or by an expert witness. McLeod v. Cannon Oil Corp., 603 So.2d 889 (Ala.1992); Robinson v. State, 574 So.2d 910 (Ala.Crim.App.1990). See C. Gamble, McElroy’s Alabama Evidence § 127.01(5)(d) (4th ed. 1991). The basis for the preclusion is the fear that the admission of such an opinion will preempt the role and function of the factfinder. Rule 704 continues the preexisting principle that witnesses generally are precluded from giving opinions that involve legal definitions or conclusions. See, e.g., Ex parte Dial, 387 So.2d 879 (Ala.1980) (reversible error to permit policeman to give opinion as to whether an individual was an “accomplice”); Wilkinson v. Duncan, 294 Ala. 509, 319 So.2d 253 (1975) (physician not permitted to give opinion that testator had sufficient testamentary capacity to make a will). See also C. Gamble, McElroy’s Alabama Evidence § 128.07 (4th ed. 1991). That principle is often referred to as the “ultimate issue rule.”

The adoption of Rule 704 constitutes a rejection of the corresponding federal rule, under which the ultimate issue rule is abandoned. See Fed.R.Evid. 704(a).

There is no intent that adoption of Rule 704 should abrogate preexisting case law liberalizing the application of the ultimate issue rule. See, e.g., Harrison v. Wientjes, 466 So.2d 125, 127 (Ala.1985); Boatwright v. State, 351 So.2d 1366 (Ala.1977).

Rule 705. Disclosure of facts or data underlying expert opinion.

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

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Under preexisting Alabama law, as well as the common law nationally, an expert could not give an opinion before the jury was made privy to the facts upon which the opinion was based. See Thompson v. Jarrell, 460 So.2d 148 (Ala.1984) (holding that the facts known to the expert or hypothesized must be facts in evidence); Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). Rule 705, like its identical federal counterpart, eliminates the requirement that the underlying facts or data be disclosed as a condition precedent to the expert’s giving an opinion or other testimony. As a practical matter, this abandonment of the historic requirement is aimed primarily at the hypothetical question. See Fed.R.Evid. 705 advisory committee’s note. The hypothetical question has been much criticized for its wordiness and for its allowing counsel to arbitrarily select facts and, thereby, to fashion a hypothesis that is one-sided. See E. Cleary, McCormick on Evidence § 16 (3d ed. 1984); 2 J. Wigmore, Wigmore on Evidence § 686 (Chadbourn Rev. 1979) (observing: “It is a strange irony that the hypothetical question, which is one of the few truly scientific features of the rules of evidence, should have become that feature which does most to disgust men of science with the law of evidence.”); Judge Learned Hand, New York Bar Association Lectures on Legal Topics, 1921-1922 (characterizing the hypothetical question as “the most horrific and grotesque wen on the fair face of justice”); M. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426 (1952).

It is left to the cross-examiner to elicit the facts or data on which the opinion is based, and the witness must, if asked, disclose such information. See Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir.), cert. denied, 426 U.S. 907 (1976) (holding that “[t]he weakness in the underpinnings of such opinions may be developed upon cross-examination and such weakness goes to the weight and credibility of the testimony”). The cross-examiner, of course, is under no obligation to bring out such facts or data and, indeed, may limit inquiry solely to facts or data that are unfavorable to the opinion. The right of the cross-examiner to bring out such facts or data will be fully realized only where liberal pretrial discovery is allowed. See Ala.R.Civ.P. 26(b)(4) (providing for discovery of facts known or opinions held by an opponent’s expert); Ala.R.Crim.P. 18.1(d) (recognizing the right of the defense to inspect and copy any results or reports of physical or mental examinations or scientific tests or experiments).

The trial judge has the discretion to require a preliminary disclosure of the underlying facts in appropriate instances. See C. Gamble, McElroy’s Alabama Evidence § 127.01(5)(e) (4th ed. 1991) (taking the position that “the matter of whether the expert should be required to detail the data observed by him before stating his opinion should be committed in measurable degree to the discretion of the trial court”). This discretion would most often be exercised in those cases where the cross-examining party has been unable effectively to gain advance knowledge, particularly if not provided adequate discovery, sufficient to support an effective cross-examination. See United States v. Lawson, 653 F.2d 299, 301 (7th Cir.1981), cert. denied, 454 U.S. 1150 (1982). Compare Haw.R.Evid. 705; Idaho R.Evid. 705.

Despite the abandonment of the requirement that the facts be in evidence before an expert’s opinion can be admitted, the committee contemplates that many lawyers calling an expert will continue to elicit the facts, on the belief that to do so will positively affect the weight the trier of fact will give to the opinion. See C. Gamble, McElroy’s Alabama Evidence § 127.01(5)(e) (4th ed. 1991) (“Of course, the trial attorney normally will wish to elicit the facts from his expert witness prior to the giving of an opinion in order to bolster the witness’s credibility in the eyes of the jury.”).

Rule 706. Court appointed experts.

(a)   Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’s duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’s findings, if any; the witness’s deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. Except as otherwise provided by law, the court shall order that the compensation be paid by the parties in such a proportion as the court may direct, to be paid at such a time as the court directs, and the costs as so ordered may be charged in the same manner as other costs. (c) Disclosure of appointment. The fact that the court has appointed a particular expert witness will not be disclosed to the jury. (d) Parties’ experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

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Section (a). Appointment. Section (a) recognizes the historic power of the trial court to appoint its own expert witnesses. See Alabama Great S. R.R. v. Hill, 90 Ala. 71, 8 So. 90 (1890). Compare J. Sink, The Unused Power of a Federal Judge to Call His Own Witnesses, 29 S.Cal.L.Rev. 195 (1956). The committee contemplates that this rule will make impartial experts more accessible to the courts. See Vt.R.Evid. 706 (reporter’s notes to the effect that the rule “is a desirable one, providing an antidote to the most commonly noted weakness in the use of expert witnesses – the partisanship of experts chosen by the parties”).

The appointment of an expert may be made upon the judge’s own motion or upon that of a party. An expert witness appointed by the court is subject to the deposition procedure. All parties have the right to cross-examine such a witness. See Fed.R.Evid. 706 advisory committee’s note.

Section (b). Compensation. Expert witnesses appointed by the court are to receive reasonable compensation as set by the court. The compensation should come from any source provided by law. If the law provides no other source for the compensation, then the judge may assess the compensation as costs to be paid by each party in such a proportion as the court deems fair.

Section (c). Disclosure of appointment. The fact that an expert has been appointed by the court is not to be disclosed to the jury. Such disclosure is precluded, whether by the court or by the parties themselves. See Elliott v. State, 48 Ala.App. 515, 266 So.2d 318, cert. denied, 289 Ala. 742, 266 So.2d 321 (1972). See also C. Gamble, McElroy’s Alabama Evidence § 445.01 (4th ed. 1991).

Section (d). Parties’ experts of own selection. Like its identical federal counterpart, section (d) provides that the trial court’s exercise of its power to appoint and call an expert witness will not limit the parties in calling their own experts.