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Fitch v. State8/31/2001
"THE COURT: As to the elements that are charged in this -- did you understand the question?
"THE WITNESS: Yes, sir.
"THE COURT: Overruled.
"....
"Q: Can a Commissioner vote to award a contract by negotiation after a competitive bid in which the bidders have been disqualified?
"A: In my opinion, that would be a use of position for personal gain and would be a violation of the Ethics Law, yes, sir.
"Q: And it doesn't make any difference whether it's voting to award a negotiated contract or competively bid contract, does it?
"A: Regardless, they cannot be involved in the transaction. If it is bid, they can be bidder but nothing else." R. 1044-47.
The above exchange did not constitute reversible error under Rule 704, Ala.R.Evid., because Rule 702, Ala.R.Evid., provides an exception for its admission. Rule 702, Ala.R.Evid., provides:
"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."
This Court has said:
"Rule 704, Ala.R.Evid., provides that ` estimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.' However, in the case of expert testimony, enforcement of this rule has been lax. C. Gamble, Gamble's Alabama Rules of Evidence § 704 (1995). We have noted previously in Travis v. State, So. 2d at (Ala.Cr.App. 1997), that expert testimony as to the ultimate issue should be allowed when it would aid or assist the trier of fact, and the fact that `"`a question propounded to an expert witness will elicit an opinion from him in practical affirmation or disaffirmation of a material issue in a case will not suffice to render the question improper'"' (citations omitted); see also Rule 702, Ala.R.Evid. (stating that expert testimony should be allowed when it will aid or assist the trier of fact)." Henderson v. State, 715 So. 2d 863, 864-65 (Ala.Crim.App. 1997).
"We recognize that through interviews, case studies, and research a person may acquire superior knowledge concerning characteristics of an offense." Simmons v. State, [Ms. CR-97-0768, April 28, 2000] So. 2d, (Ala.Crim.App. 2000).
Evans's testimony -- that as counsel for the Ethics Commission he authored advisory opinions that applied the ethics law to fact situations -- was sufficient to establish that he had a specialized knowledge of the ethics law. Here, an ultimate issue to be decided by the jury was whether Fitch's alleged direct personal financial gain was specifically authorized by law. "It seems to us that expert testimony on this subject -- which the defense was free to contradict -- was reasonably likely to assist the jury in understanding and in assessing the evidence, in that the matter at issue was highly material, and beyond the realm of `acquired' knowledge normally possessed by lay jurors." Simmons v. State, So. 2d at (homicide investigator considered an expert in crime scene analysis and victimology based on his studies and experiences in these fields).
Evans's familiarity with the ethics law would have assisted the fact-finder in determining whether Fitch's conduct was authorized by law.
Moreover, if the trial court had erred in allowing this testimony, the error would have been harmless for two reasons. First, Fitch was found not guilty of voting to award the contract. Thus, Fitch was not
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