Rule 702. The Expert’s Qualification to Form an Opinion

militarydefenselawyers388Rule 702. Testimony by experts
. . . a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.

  1. Knowledge, Training, and Education Foundation. Show degrees attained from educational institutions; show other specialized training in the field; show the witness is licensed to practice in the field and has done so (if applicable) for a long period of time; show teaching experience in the field; show the witness’
    publications; and show membership in professional organizations, honors or prizes received, previous expert testimony.
  2. Skill and Experience Foundation. An expert due to specialized knowledge. See
    United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986).

    1. United States v. Banks, 36 M.J. 150 (C.M.A. 1992). Military judge erred
      when he refused to allow defense clinical psychologist to testify about
      the relevance of specific measurements for a normal prepubertal vagina,
      solely because the psychologist was not a medical doctor. As the court
      noted, testimony from a qualified expert, not proffered as a medical
      doctor, would have assisted the panel in understanding the government’s
      evidence.
    2. United States v. Harris, 46 M.J. 221 (1997). Military judge did not err in
      qualifying a highway patrolman who investigated over 1500 accidents, as
      an expert in accident reconstruction.
    3. United States v. McElhaney, 54 M.J. 120 (2000). During the sentencing
      phase, the government called an expert on future dangerousness of the
      accused. The expert said he could not diagnose the accused because he
      had not interviewed him nor had he reviewed his medical records. In
      spite of this and objections by defense counsel, the expert did testify
      about pedophilia and made a strong inference that the accused was a
      pedophile who had little hope of rehabilitation. The CAAF held that it
      was error for the judge to admit this evidence. Citing Houser, the court
      noted that the expert lacked the proper foundation for this testimony, as
      noted by his own statements that he could not perform a diagnosis
      because of his lack of contact with the accused.
    4. United States v. Billings, 61 M.J. 163 (2005). To link the appellant to a
      stolen (and never recovered) Cartier Tank Francaise watch, the
      Government called a local jeweler as an expert witness in Cartier watch
      identification to testify that a watch the appellant was wearing in a
      photograph had similar characteristics as a Tank Francaise watch.
      Although the jeweler had never actually seen a Tank Francaise watch, his
      twenty-five years of experience and general familiarity with the
      characteristics of Cartier watches qualified him as a technical expert.

Skill and Experience Foundation

United States v. Harris