![]() 1997) (law enforcement agents could testify that the defendant was acting suspiciously, without being qualified as experts however, the rules on experts were applicable where the agents testified on the basis of extensive experience that the defendant was using code words to refer to drug quantities and prices). ![]() Certainly it is possible for the same witness to provide both lay and expert testimony in a single case. The amendment does not distinguish between expert and lay witnesses, but rather between expert and lay testimony. 1997) (law enforcement agents testifying that the defendant's conduct was consistent with that of a drug trafficker could not testify as lay witnesses to permit such testimony under Rule 701 “subverts the requirements of Federal Rule of Criminal Procedure 16 (a)(1)(E)”). 97, 108 (1996) (noting that “there is no good reason to allow what is essentially surprise expert testimony,” and that “the Court should be vigilant to preclude manipulative conduct designed to thwart the expert disclosure and discovery process”). See Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal Rules of Civil Procedure, 164 F.R.D. 16 by simply calling an expert witness in the guise of a layperson. By channeling testimony that is actually expert testimony to Rule 702, the amendment also ensures that a party will not evade the expert witness disclosure requirements set forth in Fed.R.Civ.P. Benton Harbor Eng'g, 57 F.3d 1190 (3d Cir. Under the amendment, a witness’ testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Notes of Advisory Committee on Rules-1987 Amendment Similar provisions are California Evidence Code §800 Kansas Code of Civil Procedure §60–456(a) New Jersey Evidence Rule 56(1). The language of the rule is substantially that of Uniform. If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule. See Ladd, Expert Testimony, 5 Vand.L.Rev. If he fails to do so, cross-examination and argument will point up the weakness. The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. Moreover, the practical impossibility of determinating by rule what is a “fact,” demonstrated by a century of litigation of the question of what is a fact for purposes of pleading under the Field Code, extends into evidence also. While the courts have made concessions in certain recurring situations, necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or conclusion. Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. Limitation (a) is the familiar requirement of first-hand knowledge or observation. The rule retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event. Notes of Advisory Committee on Proposed Rules (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue and (a) rationally based on the witness’s perception ![]() If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
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