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Onstad v. Payless ShoeSource8/24/2000
g and experience and the testimony was for the purpose of assisting the trier of fact would suggest that the officer was an expert under Rule 702 as opposed to a lay witness under Rule 701. It is Rule 702, not 701 which requires that the witness be qualified as an expert by knowledge, skill, experience, training, or education. Rule 701 only requires that the witness testify based upon his personal perception. The Hislop decision lends no support to Onstad's contention that Officer Leonard's testimony as to the psychology and predictability of sex offenders falls within the purview of lay testimony under Rule 701, M.R.Evid.
83 Officer Leonard's expert testimony went to the heart of Onstad's theory that, given the expectation that Luplow's "harmless pervert" exhibitions would be expected to escalate to violent conduct, Payless had knowledge of a high probability of harm to Onstad and acted with indifference to that harm. The admission of undisclosed expert testimony from Officer Leonard constitutes prejudicial error and I would reverse.
W. WILLIAM LEAPHART
Justice Karla M. Gray and Justice James C. Nelson join in the foregoing dissenting opinion.
KARLA M. GRAY
JAMES C. NELSON
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