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40. Should the expert's opinion be admitted?
At a defendant's trial for drug dealing, a prosecution witness testified that he had heard the defendant telling a group of people to come to the defendant's house because he had «a great crop of apples for sale.» The prosecutor then called and qualified a drug enforcement agent as an expert in how drug dealing is conducted. The prosecutor now seeks to have the expert testify that in her opinion, based on years of experience with drug dealers, the defendant's statement about the apples was code for his having drugs for sale.
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A is incorrect. An expert may base their opinion on facts the expert knows from observation, facts presented in evidence at trial, or facts not in evidence that were supplied outside of court, which are the type reasonably relied on by experts in the field when forming opinions. In this case, the expert's opinion came from applying specialized knowledge to the facts presented at trial: the witness's testimony about the defendant's statement.
B is incorrect. The fact that the opinion is based on criminal activity does not automatically make it more prejudicial than probative. The court weighs all expert opinions against the Rule 403 balancing test for admissibility.
D is incorrect. An expert may give opinion testimony on direct examination without disclosing the basis of the opinion.