2008 edition - Fort Sam Houston - U.S. Army

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.
Rule 703. Bases of opinion testimony by
experts
T h e f a c t s o r d a t a i n t h e p a r t i c u l a r c a s e u p o n
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 members by the proponent of the
opinion or inference unless the military judge determ
i n e s t h a t t h e i r p r o b a t i v e v a l u e i n a s s i s t i n g t h e
members to evaluate the expert’s opinion substantially
outweighs their prejudicial effect.
Rule 704. Opinion on ultimate issue
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.
Rule 705. Disclosure of facts or data
underlying expert opinion
The expert may testify in terms of opinion or
i n f e r e n c e a n d g i v e t h e e x p e r t ’ s r e a s o n s t h e r e f o r
without prior disclosure of the underlying facts or
data, unless the military judge requires otherwise.
The expert may in any event be required to disclose
the underlying facts or data on cross-examination.
Rule 706. Court appointed experts
(a) Appointment and compensation. The trial counsel,
the defense counsel, and the court-martial have
equal opportunity to obtain expert witnesses under
Article 46. The employment and compensation of
expert witnesses is governed by R.C.M. 703.
(b) Disclosure of employment. In the exercise of
discretion, the military judge may authorize disclosure
to the members of the fact that the military
judge called an expert witness.
(c) Accused’s experts of own selection. Nothing in
this rule limits the accused in calling expert witnesses
of the accused’s own selection and at the
accused’s own expense.
Rule 707. Polygraph Examinations
(a) Notwithstanding any other provision of law, the
results of a polygraph examination, the opinion of a
polygraph examiner, or any reference to an offer to
take, failure to take, or taking of a polygraph examination,
shall not be admitted into evidence.
(b) Nothing in this section is intended to exclude
from evidence statements made during a polygraph
examination which are otherwise admissible.
HEARSAY
SECTION VIII
M.R.E. 801(d)(1)
Rule 801. Definitions
The following definitions apply under this section:
(a) Statement. A “statement” is (1) an oral or written
assertion or(2) nonverbal conduct of a person, if
it is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes
a statement.
(c) Hearsay. “Hearsay” is a statement, other than
the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the
truth of the matter asserted.
(d) Statements which are not hearsay. A statement
is not hearsay if:
(1) Prior statement by witness. The declarant testifies
at the trial or hearing and is subject to crossexamination
concerning the statement, and the statement
is (A) inconsistent with the declarant’s testimony,
and was given under oath subject to the penalty
of perjury at a trial, hearing, or other proceeding, or
in a deposition, or (B) consistent with the declarant’s
testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication
or improper influence or motive, or (C) one of
III-39