FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
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Rules Table of Contents
Article VII Opinions And Expert Testimony (Fed. Rules Evid. 701-706)
Rule 701
Opinion
Testimony By Lay Witnesses
Rule 702 Testimony By Experts
Rule 703 Bases Of Opinion Testimony
By Experts
Rule 704 Opinion On Ultimate Issue
Rule 705 Disclosure Of Facts Or Data
Underlying Expert Opinion
Rule 706(a) Court Appointed Experts:
Appointment
Rule 706(b) Court Appointed Experts:
Compensation
Rule 706(c) Court Appointed Experts:
Disclosure Of Appointment
Rule 706(d) Court Appointed Experts:
Parties' Experts Of Own Selection
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
Rule 701 Opinion Testimony By Lay Witnesses
If the witness is not testifying as an expert, the witness'
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' testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1937; Oct. 1, 1987; Dec. 1, 2000.)
Related FORECITE National™ Materials:
See FORECITE National™ 30.1 [Lay Or Non Expert Opinion Testimony].
See also FORECITE National™ 89.3.6 [Under The Influence: Lay Opinion Testimony As To Under The Influence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 9th Circuit Model Jury Instructions - Criminal 4.17.
RELATED FEDERAL MANUALS:
See A Manual On Recurring Problems [Part V(A) 5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
Rule 702 Testimony By Experts
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, if (1) the testimony is based upon 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.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1937; Dec. 1, 2000.)
Related FORECITE National™ Materials:
See FORECITE National™ 6.2.15 [Deletion Of The Term "Expert" From Expert Witness Instruction].
See also FORECITE National™ 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also FORECITE National™ 29.2 [Instruction On Expert Testimony].
See also FORECITE National™ 31.2.3 [Eyewitness Identification: Expert Witnesses].
See also FORECITE National™ 31.2.4 [Expert Witness Instruction As Substitute For Eyewitness Expert Testimony].
See also FORECITE National™ 32.2.2 [Improper To Characterize Prosecution Witness As Fingerprint “Expert”].
See also FORECITE National™ 85.2.6 [Criminal Street Gangs: Expert's Testimony Must Be Based On Personal Knowledge Or Actual Evidence].
See also FORECITE National™ 98.2.2.2 [Welfare Fraud: Expert Testimony].
See also FORECITE National™ 101.4.2.4 [Lewd Act With Child: Child Abuse Expert -- Limiting Instruction].
See also FORECITE National™ 251.4.2.9 [Good Character Evidence: Right To Expert Testimony That Defendant Is Not Deviant Or Abnormal].
See also FORECITE National™ 253.4.10.6 [Self Defense: Expert Testimony Regarding Defendant’s Mental Retardation].
See also FORECITE National™ 255.4.1.8 [Imperfect Self Defense: Right To Expert Testimony On Psychological Profile In Support Of Subjective Belief In The Need To Use Force].
See also FORECITE National™ 256.4.7 [Insanity: Consideration Of All Evidence, Not Just The Expert Opinions].
See also FORECITE National™ 256.4.8 [Insanity: Jury Not Required To Accept Expert Opinion As Conclusive].
See also FORECITE National™ 256.4.9 [Insanity: Court Appointed Expert].
See also FORECITE National™ 256.6.3.3 [Expert Testimony As To Combined Effects Of Alcohol And Cocaine].
See also FORECITE National™ 256.6.3.4 [Expert Testimony Required For Drug Intoxication].
See also FORECITE National™ 256.7.1.5 [Expert Testimony Regarding Defendant's Formation Of Mental State].
See also FORECITE National™ 276.5.2 [Limitation Of Common Experience Or Common Sense Where It May Contradict Expert Testimony].
See also FORECITE National™ 301.8.4 [Death Penalty: Defendant Has Due Process Right To Assistance Of Expert].
See also FORECITE National™ 303.2.11 [Death Penalty: Cautionary/Limiting Instructions When Expert's Beliefs About The Death Penalty Are Elicited].
See also FORECITE National™ 303.7.8.2 [Death Penalty Mitigation: Physical Abuse Of Defendant As Child Is Relevant Mitigating Evidence Even Without Expert Testimony].
See also FORECITE National™ 305.5.8 [expert Testimony/Scientific Evidence].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 9th Circuit Model Jury Instructions - Criminal 4.17.
See 11th Circuit Pattern Jury Instructions - Criminal Preface.
RELATED FEDERAL MANUALS:
See also Manual On Recurring Problems [Part V(A) 5b. Receipt Of Expert Testimony: Determination Of Admissibility Of Expert Testimony].
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
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.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1937; Oct. 1, 1987; Dec. 1, 2000.)
Related FORECITE National™ Materials:
See FORECITE National™ 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also FORECITE National™ 29.2 [Instruction On Expert Testimony].
See also FORECITE National™ 29.2.5 [Limiting Jury’s Consideration Of Facts Admitted Into Evidence As Basis For Expert’s Opinion].
RELATED FEDERAL MODEL INSTRUCTIONS:
See also 9th Circuit Model Jury Instructions - Criminal 4.17.
RELATED FEDERAL MANUALS:
See A Manual On Recurring Problems [Part V(A) 5c. Receipt Of Expert Testimony: Expert Opinion Testimony].
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
Rule 704 Opinion On Ultimate Issue
(a) Except as provided in subdivision (b), testimony in the
form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition
of a defendant in a criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense thereto. Such
ultimate issues are matters for the trier of fact alone.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1937; Oct. 12, 1984, P.L. 98-473,
Title IV, Ch IV, § 406, 98 Stat. 2067.)
For additional discussion of this rule see Issues Where Federal Rules Of Evidence Conflict With Case Law Or Are Silent: Case Law Divergence From The Federal Rules Of Evidence, FRE 704(b).
Related FORECITE National™ Materials:
See FORECITE National™ 29.1.6 [Expert Witness: Ultimate Issue Rule Abolished In Federal System].
RELATED FEDERAL MANUALS:
See A Manual On Recurring Problems [Part V(A) 5e. Receipt Of Expert Testimony: Opinion Testimony On Ultimate Issue].
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
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.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1938; Oct. 1, 1987; Dec. 1, 1993.)
Related FORECITE National™ Materials:
See FORECITE National™ 29.1 [Expert Qualification And Scope Of Expert Testimony].
See also FORECITE National™ 29.2 [Instruction On Expert Testimony].
See also FORECITE National™ 29.2.5 [Limiting Jury’s Consideration Of Facts Admitted Into Evidence As Basis For Expert’s Opinion].
RELATED FEDERAL MODEL INSTRUCTIONS:
See also 9th Circuit Model Jury Instructions - Criminal 4.17.
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
Rule 706(a) Court Appointed Experts: 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' 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' findings, if any; the witness' 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.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1938; Oct. 1, 1987.)
Related FORECITE National™ Materials:
See FORECITE National™ 29.2.9 [Court Appointed Expert Should Be Treated The Same As Any Other].
See FORECITE National™ 256.4.9 [Insanity: Court Appointed Expert].
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
Rule 706(b) Court Appointed Experts: Compensation
Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1938; Oct. 1, 1987.)
Related FORECITE National™ Materials:
See FORECITE National™ 29.2.9 [Court Appointed Expert Should Be Treated The Same As Any Other].
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
Rule 706(c) Court Appointed Experts: Disclosure
Of Appointment
In the exercise of its discretion, the court may authorize disclosure to the
jury of the fact that the court appointed the expert witness.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1938; Oct. 1, 1987.)
Related FORECITE National™ Materials:
See FORECITE National™ 29.2.9 [Court Appointed Expert Should Be Treated The Same As Any Other].
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2007
Rule 706(d) Court Appointed Experts: Parties'
Experts Of Own Selection
Nothing in this rule limits the parties in calling expert witnesses of their own
selection.
History:
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1938; Oct. 1, 1987.)
Related FORECITE National™ Materials:
See FORECITE National™ 29.1.7 [Right To Expert Testimony Which Is Relevant To Defense Theory].