THE ARGUMENTS:An Anthrax Truther has argued that if Dr. Bruce Ivins had been brought to trial, FBI Special Agent Darin Steele would not have been allowed to testify to decoding the hidden message in the anthrax letters sent to Tom Brokaw and The New York Post because Agent Steele was not a certified cryptographer. The Anthrax Truther uses his personal interpretation of Rule #702c as the basis for his arguments. He claims that Rule #701c says no one can testify about a scientific, technical or other specialized field UNLESS he is a certified expert in that field. A quote from the Anthrax Truther:
Lay witnesses are explicitly prevented from testifying in scientific/technical areas by 701c
My interpretation follows what the experts say: Agent Steele's testimony is what he rationally perceived as part of the FBI's investigation of Dr. Ivins, it's obviously relevant to determining Dr. Ivins guilt or innocence, and thus it is fully admissible under Rule 701 for "Opinion Testimony by Lay Witnesses." Rule 701c merely says that IF Agent Steele had decoded the message as part of his job as a cryptographer, then he would have had to testify as an EXPERT witness. Agent Steele was not a cryptographer, therefore it was okay for him to testify as a LAY witness. There is no rule that says he cannot testify to what he found. In other words:
Experts in a field who testify to what they found as experts using their expertise are explicitly prevented from testifying as lay witnesses by 701c and MUST testify as expert witnesses
Lay witnesses who testify to what they rationally perceived, even if it is in a technical area, are NOT prevented from testifying by rule 701c
Click HERE to view the entire Rules of Evidence. Below are Rules #701 and #702 with 701c highlighted in red:
Rule 701. Opinion Testimony by Lay WitnessesIf a witness is not testifying as an expert, testimony in the formof an opinion is limited to one that is:(a) rationally based on the witness’s perception;(b) helpful to clearly understanding the witness’s testimonyor to determining a fact in issue; and(c) not based on scientific, technical, or other specializedknowledge within the scope of Rule 702.
Rule 702. Testimony by Expert WitnessesA witness who is qualified as an expert by knowledge, skill,experience, training, or education may testify in the form of anopinion or otherwise if:(a) the expert’s scientific, technical, or other specializedknowledge will help the trier of fact to understand theevidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles andmethods; and(d) the expert has reliably applied the principles and methodsto the facts of the case.
The best explanation of Rule #701c that I've been able to find so far is HERE. That article says:
Rule 701 now provides that any part of a witness' testimony that is based on scientific, technical, or other specialized knowledge must comply with the standards of Rule 702 and the expert disclosure requirements. Specifically, a new subsection (c) was added which provides that for testimony to be admissible under rule 701, the testimony of a lay witness is limited to opinions or inferences "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." The effect of this change is that if testimony could qualify under 702, then it cannot qualify under 701. The focus of the amendment is on the subject matter of the testimony, rather than whether the witness is a layperson or an expert.There are other interesting discussions of Rule 701c HERE, HERE, HERE, HERE, HERE and HERE, which may contain what is needed to resolve this question, but there is a lot of legalese to dig through, and it's too easy to post a finding and have it disputed because of a disagreement over the meaning of a single word.
ANALYSES & INTERPRETATIONS:
Rule #701c was added to assure that no expert witness testimony which could qualify under Rule #702 is made instead under Rule 701 as lay witness testimony. The focus is on the subject matter of the testimony, not on who is giving the testimony. For example, if the testimony is "the product of reliable principles and methods" and "the expert has reliably applied the principles and methods to the facts of the case," then the testimony must be given by an expert witness. It cannot be given by a lay witness. Agent Steele was NOT an expert testifying about principles and methods used to decode the message, so neither Rule #702 or Rule #701c would apply to him, and thus he could testify as a lay witness about what he did.
It is also important to note that Rule #701c was added in the year 2000. Was it okay prior to 2000 for Agent Steele to testify as a lay witness, and after 2000 would he no longer be able to testify at all? That implies a MAJOR change in who can testify. Rule #701c was merely added to prevent lawyers from putting experts on the stand as lay witnesses to avoid any challenges to their expertise and to avoid having to disclose during Discovery what each expert witness is going to say.
The questions now are: How do we determine who is right? Would Agent Steele have been able to testify to what he found? Or would he have been prevented from testifying by Rule #701c as the Anthrax Truther claims?
I'm going to look for other web pages which discuss Rule #701c, but I suspect that the Anthrax Truther will continue to believe what he wants to believe, no matter what I find.