EVIDENCE—BASES OF OPINION TESTIMONY BY EXPERTS

1. EVIDENCE—BASES OF OPINION TESTIMONY BY EXPERTS WHAT A TRIAL JUDGE SHOULD KNOW Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

2. RULE 702 • 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. Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

3. Topics of Discussion • Rule 703 • Rule 703 inquiries • Hearsay analysis • Relevancy analysis • Rule 705 • Limiting instructions Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

4. RULE 703 • 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 him 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. Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

5. RULE 703 INQUIRIES 1. Has the witness been tendered and accepted as an expert? 2. In what field is defendant qualified to testify as an expert? 3. Are the facts or data of a type reasonably relied upon by experts in the particular field? 4. Are the facts or data relevant to the opinion? Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

6. HEARSAY ANALYSIS 1. An out-of-court statement offered for a purpose other than to prove the truth of the matter asserted is not considered hearsay. Rule 801 (c); State v. Shepherd, 575 S.E.2d 776(2003). 2. Such evidence is admissible for the limited purpose for which it was offered and not as an exception to the hearsay rule. Id. Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

7. RELEVANCY ANALYSIS 1. Rule 403—Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See State v.Coffey, 336 N.C. 412(1994); State v.Wallace, 351 N.C. 481(2000). Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

8. RULE 705 The expert may testify in terms of opinion or inference and give his reasons without prior disclosure of the underlying facts or data unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct exam or voir dire before stating the opinion. Disclosure may be required on cross-exam without a request. Hypothetical questions are not required.See Statev.Wallace,351 N.C. 481(2000);State v.Pretty, 134 N.C.App. 379(1999). Kimberly S. Taylor Fall Superior Court Judge's Conference 2003

9. LIMITING INSTRUCTIONS • If the testimony is being offered for the limited purpose of establishing the basis for the expert’s opinion, and does not meet an exception to the hearsay rules: • the court should, upon request, give a limiting instruction pursuant to Rule 105. Refer to N.C.P.I.Crim 104.96;Civil 101.33;Motor Vehicle 101.33. See State v. Jones, 322 N.C. 406(1988). Kimberly S. Taylor Fall Superior Court Judge's Conference 2003