Testimony by experts

(a) 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. In addition to the requirements in section (a), expert testimony based on a scientific (b) theory, principle, methodology, or procedure is admissible only if: (1) The testimony is based on 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. The provisions of this section (b) shall apply to all civil state-court actions commenced on or after January 1, 2012. In criminal actions, this section shall apply only to nonjuvenile felony proceedings in which the defendant was arrested on the charge or charges that are the subject of the proceedings on or after January 1, 2012. The provisions of this section (b) shall not apply to domestic-relations cases, child-support cases, juvenile cases, or cases in the probate court. Even, however, in the cases and proceedings in which this section (b) does not apply, expert testimony relating to DNA analysis shall continue to be admissible under Ala. Code 1975, § 36-18-30. (c) Nothing in this rule is intended to modify, supersede, or amend any provisions of the Alabama Medical Liability Act of 1987 or the Alabama Medical Liability Act of 1996 or any judicial interpretation of those acts. [Amended 11-29-2011, eff. 1-1-2012.] Advisory Committee’s Notes Historically, expert witnesses have been permitted to give opinions only upon subjects that are held to be beyond the understanding of the average layperson. The theory underlying this common law principle is that the jurors, on subjects of common knowledge, are just as qualified to draw their own conclusions and it would be a preemption of their role and function to allow an expert to testify as to those subjects. See Ala. Code 1975, § 12-21-160 (superseded by adoption of the present rule). Rule 702, identical to the corresponding Federal Rule of Evidence, changes the focus from whether the subject of the testimony is beyond common understanding to whether the expert’s opinion or testimony will assist the trier of fact. Under this rule it is possible that an expert opinion or testimony on a question of common knowledge would be admitted by the trial judge as helpful to the trier of fact. The phrase “assist the trier of fact,” used by Rule 702 as the threshold test for expert testimony, is not new to Alabama. Alabama historically and generally has refused expert testimony or opinion on a subject that is within the understanding of the average layperson. Recent decisions dealing with expert testimony on such subjects, however, have departed from this position and in speaking of expert testimony have increasingly used the words “helpful to” or “assist” the trier of fact. See, e.g., Baker v. Edgar, 472 So.2d 968 (Ala.1985) (expert opinions admitted because they would “greatly assist the members of the jury”); Price v. Jacobs, 387 So.2d 172 (Ala.1980) (using the term “helpful” in ruling on admissibility of expert opinion); Glaze v. Tennyson, 352 So.2d 1335 (Ala.1977) (declaring that the test is whether the expert opinion will aid the trier of fact). See also C. Gamble, McElroy’s Alabama Evidence § 127.01(5) (4th ed. 1991). Rule 702, by using the term “or otherwise,” recognizes the admissibility of expert testimony in nonopinion form. The advisory committee’s note to Fed.R.Evid. 702 states: “Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.” Much discretion remains vested in the trial judge to determine whether a proffered witness qualifies as an expert. See Griffin v. Gregory, 355 So.2d 691 (Ala.1978) (observing that whether to allow a witness to testify as an expert is largely in the trial court’s discretion and that the exercise of this discretion will not be disturbed except for abuse). The applicable law on this subject should remain largely as it was before the adoption of Rule 702. For example, under Rule 702 “qualification” should continue to be defined broadly, so that one may gain an expertise through practical experience as well as through formal training or education. See, e.g., International Telecommunications Sys. v. State, 359 So.2d 364 (Ala.1978) (recognizing that experience and practical knowledge, as fully as formal education, qualify one to make technical judgments). Experts often base their opinions and other testimony upon the results of scientific tests. Rule 702 does not undertake to answer the question whether such tests possess sufficient reliability to be admissible. The standard applied in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), has become the standard adopted by Alabama. See Ex parte Perry, 586 So.2d 242, 247 (Ala.1991). Scientific tests are admissible only when they have gained general acceptance in the particular field. Kent v. Singleton, 457 So.2d 356 (Ala.1984); Ex parte Dolvin, 391 So.2d 677 (Ala.1980). Further development of Alabama law on this subject is left to the case law. See C. Gamble, McElroy’s Alabama Evidence § 490.01 (4th ed. 1991). As under preexisting Alabama law, both questions – whether a witness is qualified as an expert and whether, if so qualified, that witness may give expert opinion or testimony on the subject in question – are left largely to the discretion of the trial judge. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). The committee, in recommending this Rule 702, gave due consideration to the latest suggested amendment to Fed.R.Evid. 702, one proposed in 1991 by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The committee agreed that there are problems in the present use of expert witnesses but that the proposed amendment to the federal rule raises more questions than it answers. See J. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound: It Should Not be Amended, 138 F.R.D. 631 (1991). Consequently, the committee did not recommend incorporating the terms of that proposed federal amendment into Ala.R.Evid. 702. Advisory Committee's Notes to Amendment to Rule 702 Effective January 1, 2012