2006 Nebraska Revised Statutes - § 27-702 — Rule 702. Testimony by experts; when.

Section 27-702
Rule 702. Testimony by experts; when.

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.


Source:
    Laws 1975, LB 279, § 50

Annotations:
    Expert testimony concerning a question of law is generally not admissible in evidence. Schmidt v. Omaha Pub. Power Dist., 245 Neb. 776, 515 N.W.2d 756 (1994).

    If an expert's testimony lacks probative value, the testimony is irrelevant and is inadmissible. In determining admissibility of an expert's testimony, a court considers four questions: (1) Does the witness qualify as an expert? (2) Is the testimony relevant? (3) Will the testimony assist the trier of fact to understand the evidence or determine a controverted factual issue? (4) Should the testimony, even if relevant and admissible, be excluded in light of section 27-403? Relevance of an opinion is among the initial questions for a trial court in determining admissibility of an expert's opinion under this section. Reliability of an expert's testimony which is based on a scientific principle or on a technique or process which applies a scientific principle depends on general acceptance of the principle, technique, or process in the relevant scientific community. Under the standard of helpfulness required by this section, a court may exclude an expert's opinion which is nothing more than an expression of how the trier of fact should decide a case or what result should be reached on any issue to be resolved by the trier of fact. When an expert's opinion on a disputed issue is a conclusion which may be deduced equally as well by the trier of fact with sufficient evidence on the issue, the expert's opinion is superfluous and does not assist the trier in understanding the evidence or determining a factual issue. Whether a witness is an expert depends on the factual basis or reality behind a witness' title or underlying a witness' claim to expertise. Whether a witness is qualified to testify as an expert under this section is a preliminary question of admissibility for a trial court under section 27-104(1). State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

    The first question to be answered by a court considering admissibility of expert testimony under this section is whether the testimony is likely to assist the trier of fact; if the testimony will not be of assistance to the jury in its deliberations and relates to an area within the competency of ordinary citizens, the expert testimony is not admissible. Getzschman v. Miller Chemical Co., 232 Neb. 885, 443 N.W.2d 260 (1989).

    Evidence of a test result cannot be characterized as "scientific" or qualify as "technical or other specialized knowledge," and thus within the purview of this provision, unless and until it is established that the test result demonstrates what it is claimed to demonstrate. State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986).

    Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. The witness should not be allowed to express an opinion on an inadequate basis or in respect to facts not disclosed to the jury. Priest v. McConnell, 219 Neb. 328, 363 N.W.2d 173 (1985).

    Expert testimony which may be of assistance to the trier of fact is admissible even in areas where laymen have competence to determine the facts. Hegarty v. Campbell Soup Co., 214 Neb. 716, 335 N.W.2d 758 (1983).

    The general rule is that expert testimony is admissible only if it will be of assistance to the jury in its deliberations and relates to an area not within the competency of ordinary citizens. State v. Ammons, 208 Neb. 812, 305 N.W.2d 812 (1981).

    Before an expert opinion can be rendered, it must be shown that such an opinion is based upon scientific, technical, or other specialized knowledge which would assist the trier of fact to understand the evidence or to determine a fact in issue, and that the witness qualifies as an expert by reason of knowledge, skill, experience, training, or education. Northern Nat. Gas Co. v. Beech Aircraft Corp., 202 Neb. 300, 275 N.W.2d 77 (1979).2. Evidence allowed

    Trial court did not err in allowing police officer to testify as to how long THC remains in a person's system where the officer possessed extensive experience in the area of illegal narcotics and had received specific training in drug testing processes from a qualified examiner. Trial court did not err in allowing police officer to testify that a substance was marijuana where the officer had received approximately 20 hours of training in drug identification and illegal drugs and 100 hours of additional instruction in criminal investigation and evidence, the officer was experienced in undercover drug investigations and other drug control efforts, and his testimony was corroborated by a forensic chemist. State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992).

    An architect's assessment that sidewalks are safer to walk on than grass is not the kind of determination which requires special skill, knowledge, or experience to make, as contemplated by this provision. Johannes v. McNeil Real Estate Fund VIII, 225 Neb. 283, 404 N.W.2d 424 (1987).

    Testimony by a criminal investigator concerning fingerprints found at the scene of the crime is admissible, when relevant, as expert testimony. State v. Birge, 223 Neb. 761, 393 N.W.2d 713 (1986).

    Remarks by the treating physician to the effect that the causes of aneurysmal bone cyst recurrences were largely unknown did not make his expert opinion as to the cause underlying plaintiff's recurrence inadmissible; the remarks were available for impeachment and were properly weighed by the trier of fact. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).

    For a qualified expert to give an opinion of the speed of a vehicle, all necessary factors needed to establish an opinion should be supported by evidence. Nickal v. Phinney, 207 Neb. 281, 298 N.W.2d 360 (1980).

    Self-styled retired burglar permitted to testify for State as expert for opinion on utility of articles in possession of defendant when apprehended. State v. Briner, 198 Neb. 766, 255 N.W.2d 422 (1977).

    Auto manufacturer's expert witness entitled to present illustrative experiment and to testify regarding an ultimate issue of fact. Shover v. General Motors Corp., 198 Neb. 470, 253 N.W.2d 299 (1977).

    The trial court's admission of testimony by banker as expert witness regarding security agreement was not an abuse of discretion. Skiles v. Security State Bank, 1 Neb. App. 360, 494 N.W.2d 355 (1992).3. Trial court discretion

    No exact standard is possible for fixing the qualifications of an expert or skilled witness, who will be deemed qualified if, and only if, he or she possesses special skill or knowledge respecting the subject matter involved so superior to that of men in general as to make his or her formation of a judgment a fact of probative value. A trial court's factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).

    A trial court's factual finding pursuant to section 27-104(1) concerning a determination whether a witness qualifies as an expert under this section will be upheld on appeal unless clearly erroneous. The determination whether an expert's testimony or opinion will be helpful to a jury or assist the trier of fact involves the discretion of a trial court, whose ruling will be upheld on appeal unless the court abused its discretion. State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

    Absent an abuse of discretion, a trial judge's ruling regarding the admissibility of expert testimony will not be reversed. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).4. Miscellaneous

    Trial court erred in permitting police officer to testify as to administration of his various interrogation techniques. State v. Welch, 241 Neb. 699, 490 N.W.2d 216 (1992).

    All conflicts in the evidence, expert or lay, and the credibility of the witnesses are for the jury and not the Supreme Court on review. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).

    An allegation that an expert offered false testimony will not be sustained on a mere difference of expert opinion, and where opinion evidence of experts is in conflict, it becomes a question for the jury. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).

    The determination of the truthfulness or accuracy of an expert's conclusions is for the jury. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988).

    Under these provisions, it is no longer necessary to have formal training in order to be considered as an expert witness; actual practical experience in the field can also qualify one as an expert in that field. State v. Hoxworth, 218 Neb. 647, 358 N.W.2d 208 (1984).

    Under sections 27-702 and 27-705, an expert witness, qualified to be such, may testify in terms of opinion or inference without prior disclosure of underlying facts or data, the weight of such evidence being for the trier of facts. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).

    Possible modification of rule relating to opinion of investigator as to point of impact discussed but not applied retrospectively. Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976).

    In a prosecution for sexual assault of a child, an expert witness may not give testimony which directly or indirectly expresses an opinion that the child is believable, that the child is credible, or that the witness' account has been validated. State v. Doan, 1 Neb. App. 484, 498 N.W.2d 804 (1993).



~Reissue Revised Statutes of Nebraska
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