State v. Rothlisberger

2006 UT 49
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20040745
Plaintiff and Petitioner,
v.
F I L E D
Thomas Kevin Rothlisberger,
Defendant and Respondent. 	September 8, 2006
---
Seventh District, Monticello
The Honorable Lyle R. Anderson
No. 021700083
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Brett J. Delporto,
Asst. Att’y Gen., Salt Lake City, Craig C. Halls,
Blanding, for plaintiff
Barton J. Warren, Salt Lake City, William L. Schultz,
Moab, for defendant
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 	The issue before us is whether testimony as to the
quantity of methamphetamine typifying personal use is expert
testimony pursuant to rule 702 of the Utah Rules of Evidence and
therefore subject to the qualification and advance disclosure
requirements associated with that classification of testimony.
We conclude that fact or opinion testimony based on specialized
knowledge may be admitted only as expert testimony. 	We further
agree with the court of appeals that Chief Kent Adair’s testimony
at trial regarding personal use quantities of methamphetamine was
expert testimony based on his specialized knowledge. 	Because it
is not within the scope of the issue upon which we granted
certiorari, we do not address the State’s alternative argument
that it was harmless error to admit Chief Adair’s testimony

1 2006 UT 48, 147 P.3d 1187.
No. 20040745 	2
absent the required thirty days’ notice. 	We accordingly affirm
the court of appeals’ decision.
BACKGROUND
¶2 	On September 24, 2002, Respondent Kevin Rothlisberger
and Tonya Althoff, respondent in the companion case of State v.
Althoff,1 were returning from Arizona when police officer Jim
Eberling stopped them because the plates on Althoff’s car had
expired. 	Officer Eberling arrested Althoff for driving with a
suspended license and conducted a search of the vehicle incident
to arrest. 	On the console between the two front seats, Officer
Eberling discovered a small baggy containing a white substance
that appeared to be methamphetamine. 	Consequently, Officer
Eberling arrested Rothlisberger for possession of methamphetamine
and called Police Chief Kent Adair to assist in a more complete
search of the car.
¶3 	After additional searching, Officer Eberling and Chief
Adair discovered a larger baggy containing thirty-two grams of
methamphetamine, a gym bag containing a scale and small baggies,
and a device for storing and ingesting methamphetamine called a
“snort tube,” which was covered with a white residue later
identified as methamphetamine.
¶4 	Following their arrests, both Althoff and Rothlisberger
were candid with Officer Eberling, admitting, among other things,
that they had used methamphetamine earlier in the day, that the
“snort tube” belonged to Rothlisberger, and that the gym bag
containing the scale and baggies belonged to Althoff. 	Althoff
further claimed that all of the “crystal meth” was hers and that
Rothlisberger knew nothing about it.
¶5 	Rothlisberger and Althoff were charged by information
with one count of possession of a controlled substance
(methamphetamine) with intent to distribute, a second degree
felony, under Utah Code section 58-37-8(1)(a)(iii), and
possession of drug paraphernalia, a class B misdemeanor, under
Utah Code section 58-37a-5(1). 	At a preliminary hearing, Officer
Eberling testified about the arrest and the significance of the
quantity of drugs found in the car. 	At trial, Chief Adair
testified about the arrest, and both Chief Adair and Officer
Eberling testified about the significance of the quantity of
drugs found in the car. 	Specifically, Officer Eberling testified
at trial on cross-examination by Rothlisberger’s trial counsel
that the larger baggy of methamphetamine “made [him] think that

2 State v. Rothlisberger, 2004 UT App 226, ¶ 32, 95 P.3d
1193.
3 Id.
3 	No. 20040745
[Rothlisberger and Althoff] had the [methamphetamine] for sale.”
Later, Chief Adair testified that methamphetamine is usually
packaged in quantities of “[a] quarter or half grams [sic], . . .
[m]aybe even at the most a gram.” 	At this point, counsel for
Althoff and Rothlisberger objected to this line of questioning
because it elicited “expert testimony” under rule 702 of the Utah
Rules of Evidence and therefore required the State to give the
defense thirty days’ advance notice. 	The trial court overruled
this objection, determining that Chief Adair’s testimony was that
of a lay witness and thus not subject to the notification
requirement. 	Chief Adair then testified that during undercover
investigations officers usually purchase methamphetamine in
quantities of “a quarter or a half a gram,” and that it is not
“common” for someone who had personal quantities of
methamphetamine to possess scales. 	After considering
Rothlisberger’s posttrial motions on the expert testimony issue,
the trial court determined that Chief Adair’s testimony was
neither lay nor expert opinion testimony, but instead was a
statement of fact about his actual experience. 	Rothlisberger was
convicted on all charges, and he timely appealed.
¶6 	The court of appeals reversed the trial court's
judgment and remanded the case for a new trial, holding that
Chief Adair’s testimony was improperly admitted as lay opinion
testimony. 2 	The court of appeals concluded that the testimony
was expert testimony and therefore inadmissible because the State
had not properly notified the defense of the testimony in advance
of trial. 3
¶7 	We granted certiorari to review whether the court of
appeals correctly determined that Chief Adair’s testimony as to
the quantity of methamphetamine typical of personal use is expert
testimony governed by rule 702 of the Utah Rules of Evidence. 	We
have jurisdiction pursuant to Utah Code section 78-2-2(3).
STANDARD OF REVIEW
¶8 	On certiorari, we review the decision of the court of
appeals for correctness and examine whether the court of appeals
applied the appropriate standard of review in assessing the

4 State v. Cram, 2002 UT 37, ¶ 6, 46 P.3d 230.
5 Alder v. Bayer Corp., 2002 UT 115, ¶ 20, 61 P.3d 1068.
No. 20040745 	4
district court’s decision. 4 	In this case, the court of appeals
applied the appropriate standard, reviewing for abuse of
discretion the trial court’s determination that Chief Adair’s
testimony was not expert testimony. 5
ANALYSIS
¶9 	We granted certiorari to consider the narrow issue of
whether a police officer gives expert testimony under rule 702 of
the Utah Rules of Evidence when, based on his training and
experience, he testifies as to the quantities of a controlled
substance that typify personal use. 	Whether testimony is
classified as expert testimony under rule 702 is significant in
that the party offering such testimony must satisfy various
qualification and advance disclosure requirements. 	The State did
not give advance disclosure that Chief Adair would be testifying
as an expert in this case. 	Nevertheless, the State argues that
Chief Adair’s testimony was admissible as lay testimony under
rule 701 or as fact testimony without regard to rule 701 or 702.
In the alternative, the State argues that, even if the district
court erred in admitting Chief Adair’s testimony as lay
testimony, any error was harmless because there was other
evidence sufficient to show that Rothlisberger had an intent to
distribute. 	We reach only the first argument, however, because
the State’s harmless error argument is not before us on
certiorari.
I. CHIEF ADAIR’S TESTIMONY COULD BE ADMITTED
ONLY AS EXPERT TESTIMONY
¶10 	To determine whether Chief Adair’s testimony was expert
testimony, we examine Article VII of the Utah Rules of Evidence.
Of particular import to our analysis are rules 701 and 702. 	Rule
701 of the Utah Rules of Evidence provides as follows:
If the witness is not testifying as an
expert, the witness’ testimony in the form of
opinions or inferences is limited to those
opinions or inferences which are
(a) rationally based on the perception of the
witness and (b) helpful to a clear
understanding of the witness’ testimony or
the determination of a fact in issue.

6 See infra ¶¶ 16.
7 See infra ¶¶ 21-29.
8 See infra ¶¶ 17-20.
9 See, e.g., Utah R. Evid. 702; Utah R. Civ. P. 26.
5 	No. 20040745
Rule 702 of the Utah Rules of Evidence provides as follows:
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.
¶11 	In this case, we consider three types of testimony: lay
fact testimony, lay opinion testimony, and expert testimony. 	Lay
fact testimony, which is not directly addressed by rule 701 or
702, is factual testimony not based on scientific, technical, or
other specialized knowledge. 6 	Lay opinion testimony, which is
treated under rule 701, is opinion or inference testimony not
based on scientific, technical, or other specialized knowledge. 7
Expert testimony, which is treated under rule 702, is opinion or
fact testimony based on scientific, technical, or other
specialized knowledge. 8
¶12 	With respect to expert testimony under rule 702, the
offering party must usually satisfy various qualification and
advance disclosure requirements. 9 	There is no dispute that Chief
Adair was qualified to testify as he did. 	Rothlisberger argues
that admission of Chief Adair’s testimony was error, however,
because the State did not give the requisite advance notice of
his testimony.
¶13 	The State presents three arguments as to why Chief
Adair’s testimony was admissible without satisfaction of the
advance disclosure requirements for expert testimony: 	(A) Chief
Adair’s testimony was admissible because it contained only
statements of fact, not opinions; (B) Chief Adair’s testimony was
admissible because it satisfied rule 701’s requirements that
(1) the testimony be based on the witness’s personal perception,
and (2) the testimony be helpful to the fact finder; and (C) rule
702 did not apply because Chief Adair’s testimony was not based

10 See Edward L. Kimball & Ronald N. Boyce, Utah Evidence
Law, at 7-243 (2d ed. 2004).
11 See 7 Wigmore, Evidence § 1919 (Chadbourn rev. 1978)
(discussing logical weakness of distinction between fact and
opinion).
12 See Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d
1190, 1195 (3d Cir. 1995) (discussing Fed. R. Evid. 701 (1995)
(amended 2000)).
13 See Utah R. Evid. 701 advisory committee’s note.
14 Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370.
15 Id.
No. 20040745 	6
on specialized knowledge. 	We address each of these arguments in
turn.
A. 	Rule 702 Applies to Both Fact and Opinion
Testimony Based on Specialized Knowledge
¶14 	The State argues that Chief Adair’s testimony consisted
only of statements of fact about his experiences and that it
therefore was admissible without regard to either rule 701 or
rule 702. 	Under the common law, lay opinion testimony was
prohibited. 10 	But this doctrine creating a bright-line
separation between fact and opinion testimony proved unworkable
in practice. 11 	For this reason, the rigid restriction was
gradually relaxed, and the U.S. Supreme Court and Congress
ultimately adopted rule 701 of the Federal Rules of Evidence,
which allowed lay opinion testimony where it would be helpful to
the fact finder. 12 	Although the federal rule 701 was amended in
2000, the original language is of some import because rule 701 of
the Utah Rules of evidence was adopted verbatim from the original
federal rule. 13
¶15 	It is from the historical distinction between fact and
opinion testimony that the State argues that “fact testimony” of
any type is admissible as a general matter under the rules of
evidence. 	The State’s argument is in conflict, however, with the
plain meaning of the applicable portions of the Utah Rules of
Evidence. 	Our objective in interpreting a court rule is to give
effect to the intent of the body that promulgated it. 14 	Thus, we
interpret a court rule in accordance with its plain meaning, 15

16 Cf. State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682
(stating that statutes are to be interpreted in harmony with
related statutory sections).
17 Utah R. Evid. 701.
18 See 1 Kenneth S. Broun, McCormick on Evidence § 11 (6th
ed. 2006).
19 See Utah R. Evid. art. IV.
20 Utah R. Evid. 602.
21 E.g., United States v. Kayne, 90 F.3d 7, 12 (1st Cir.
1996) (concluding that testimony from coin dealers about the
price paid for coins was fact testimony not outside the
competence of a lay witness under rule 701); Davenport v. United
States, 197 F.2d 157, 158 (5th Cir. 1952) (concluding that
testimony regarding the common use of a finger stall was fact
testimony, not opinion).
7 	No. 20040745
and we construe the rule so that it is in harmony with related
rules. 16
¶16 	As an initial matter, we note that the distinction
between fact and opinion testimony arguably retains some
viability under our rule-based system. 	Rule 701 speaks only to
“testimony in the form of opinions or inferences” and does not
address the admissibility of pure fact testimony requiring no
specialized knowledge (i.e., lay fact testimony). 17 	Lay fact
testimony has always been a primary, acceptable source of
evidence in our system. 18 	Accordingly, lay fact testimony need
not satisfy rule 701 or 702 but is admissible so long as it
complies with other portions of the Utah Rules of Evidence,
including the relevancy rules in Article IV 19 and rule 602’s
requirement that a witness have personal knowledge of the matter
about which he or she is testifying. 20
¶17 	It does not follow, however, that fact testimony based
on specialized knowledge is likewise admissible without regard to
rules 701 and 702. 	Although the State has cited some other
jurisdictions that have apparently taken a position that suggests
that fact testimony based on specialized knowledge need not
comply with rule 702, 21 we conclude that allowing admission of
this type of testimony as nonexpert testimony conflicts with both
the plain meaning of Utah rule 702 and the advisory committee’s
note to the original federal rule 702.

22 Utah R. Evid. 702 (emphasis added).
23 Id.
24 Id. 701.
25 Fed. R. Evid. 702 advisory committee’s note.
No. 20040745 	8
¶18 	Rule 702 of the Utah Rules of Evidence establishes the
limits of admissible testimony for expert witnesses. 	It provides
that an expert may testify “in the form of an opinion or
otherwise.” 22 	The significance of the rule’s use of the word
“otherwise” becomes apparent when rules 701 and 702 are
considered together. 	In contrast to rule 702’s applicability to
“testimony in the form of opinion or otherwise,” 23 rule 701
concerns only “testimony in the form of opinions or
inferences.” 24 	Use of the word “otherwise” in rule 702 denotes
the broader application of rule 702 than rule 701. 	Thus, whereas
the fact-opinion distinction survives to some extent in the realm
of lay testimony, it has much less significance in the expert
testimony context. 	Whether the testimony based on specialized
knowledge is in the form of fact or opinion, rule 702 applies.
¶19 	The advisory committee’s note to federal rule 702
further supports this interpretation. 	The note states that
[m]ost of the literature assumes that experts
testify only in the form of opinions. 	The
assumption is logically unfounded. 	[Rule
702] 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. 25
Thus, the advisory committee clearly understood rule 702 to apply
to both “scientific or other principles,” i.e., facts, and
opinions based on specialized knowledge.
¶20 	In sum, if testimony, “opinion or otherwise,” is based
on “scientific, technical, or other specialized knowledge,” it is
within the scope of rule 702 of the Utah Rules of Evidence and
may not be admitted as lay fact testimony. 	In other words,
whether Chief Adair’s testimony was admissible as lay fact
testimony depends on whether it is based on specialized
knowledge. 	As noted below, we conclude that his testimony is

26 Infra ¶¶ 30-36.
27 Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370.
28 LKL Assocs. v. Farley, 2004 UT 51, ¶ 7, 94 P.3d 279.
29 Cf. State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682
(stating that statutes are to be interpreted in harmony with
related statutory sections).
9 	No. 20040745
based on specialized knowledge. 26 	Accordingly, Chief Adair’s
testimony regarding the quantity of methamphetamine typifying
personal use is not admissible as lay fact testimony. 	Having
determined that both fact and opinion testimony based on
specialized knowledge are within the scope of rule 702, we now
consider whether testimony based on specialized knowledge may
nevertheless be admitted under rule 701 as lay opinion testimony
so long as it is based on the witness’s personal perception and
is helpful to the fact finder.
B. Rule 701 Does Not Allow Admission of Testimony
Based on Specialized Knowledge
¶21 	We now address the State’s argument that, under rule
701, a lay person may testify about specialized knowledge so long
as the testimony is based on the witness’s personal perception
and would be helpful to the fact finder. 	The State argues that
even if Chief Adair’s testimony is based on specialized
knowledge, his testimony was admissible under rule 701 because it
was based on his personal perception and was helpful to the jury.
To determine whether rule 701 of the Utah Rules of Evidence
allows admission of such testimony as lay opinion testimony, we
examine the intent of the body that promulgated the rule by
looking to the rule’s plain meaning. 27 	Further, we interpret the
rule to give meaning to all its parts, avoid construing the rule
in a way that renders any portion of it superfluous, 28 and
interpret the rule so as to maintain its harmony with other court
rules related to it. 29
¶22 	At first glance, the language of rule 701 appears to
require only that an opinion be based on personal perception and
that it be helpful to the fact finder. 	But this reading ignores
the fundamental distinction between lay and expert testimony.
Article VII of the Utah Rules of Evidence is primarily concerned
with regulating expert testimony. 	It includes rules establishing

30 Utah R. Evid. 702 (setting forth admissibility of expert
testimony); id. 704 (allowing expert testimony as to the ultimate
issue except as to the mental state of a defendant in a criminal
case).
31 Id. 706.
32 Id.
33 Id. 703.
34 Id. 705.
35 Id. 701.
36 See id. 702.
37 See LKL Assocs. v. Farley, 2004 UT 51, ¶ 7, 94 P.3d 279.
38 Utah R. Evid. 702.
No. 20040745 	10
the forms of expert testimony that are admissible, 30 as well as
rules regarding court appointment of an expert, 31 the
compensation of experts, 32 the facts or data upon which an expert
may rely, 33 and disclosure of those facts or data. 34 	In contrast,
Article VII includes only one rule addressing lay testimony.
Rule 701 sets forth the requirements that must be met for lay
testimony in the form of opinions or inferences to be admissible.
A fundamental problem with the State’s construction of rule 701
as allowing lay testimony based on specialized knowledge is that
such a construction permits rule 701 to subsume the rest of
Article VII.
¶23 	Even more compelling, rule 701 by its explicit terms
applies only to lay testimony. 	That rule states that the witness
may not be “testifying as an expert.” 35 	The reference to “an
expert” logically leads to rule 702, which essentially defines an
expert as one who testifies based on “scientific, technical, or
other specialized knowledge.” 36 	Given the language of these two
rules, the requirement that we give effect to all portions of a
rule 37 demands that we maintain a distinction between rules 701
and 702 and, accordingly, disallow admission of testimony under
701 where it is based on specialized knowledge. 	In essence,
expert testimony--testimony based on “scientific, technical, or
other specialized knowledge” 38 --may not be admitted as lay
opinion testimony under rule 701.

39 See infra note 52 (listing cases allowing admission of
testimony under rule 701 even though the testimony was based on
specialized knowledge).
40 Fed. R. Evid. 701.
41 See Fed. R. Evid. 701 advisory committee’s note on 2000
amendments.
42 Kilpatrick v. Wiley, 2001 UT 107, ¶ 59, 37 P.3d 1130.
43 Fed. R. Evid. 701 advisory committee’s note on 2000
amendments.
44 Id.
11 	No. 20040745
¶24 	The amendment to rule 701 of the Federal Rules of
Evidence in 2000 further supports this interpretation. 	The
federal rule 701 appears to have been amended in direct response
to a number of federal court decisions that blurred the
distinction between rules 701 and 702. 39 	Federal Rule 701 now
expressly prohibits a lay witness from testifying “based on
scientific, technical or other specialized knowledge within the
scope of Rule 702.” 40 	While it is true that Utah has not amended
rule 701 to track the changes in its federal counterpart, the
advisory committee’s note to the 2000 amendments to rule 701 of
the Federal Rules of Evidence indicates that the amendment was
not intended to change the law. 41 	Instead, the amendment was
intended to avoid a misinterpretation of the unamended version of
rule 701. 	As in interpreting statutes, “where the purpose of an
amendment [to a procedural rule] is intended to clarify the
meaning of an earlier [version of the rule], the amendment may be
applied retroactively.” 42
¶25 	Specifically, the advisory committee’s note states that
the amendment was necessary “to eliminate the risk that the
reliability requirements set forth in Rule 702 will be evaded
through the simple expedient of proffering an expert in lay
witness clothing.” 43 	“The amendment makes clear that any part of
a witness’s testimony that is based upon scientific, technical,
or other specialized knowledge within the scope of Rule 702 is
governed by the standards of Rule 702 and the corresponding
disclosure requirements . . . .” 44 	“The amendment is not
intended to affect the prototypical example[s] of the type of
evidence contemplated by the adoption of Rule 701” because such

45 Id. (alteration in original) (internal quotation marks
omitted).
46 Utah R. Evid. 702.
47 775 P.2d 388 (Utah 1989).
48 See, e.g., id. at 397.
49 Utah R. Civ. P. 26.
50 Utah Code Ann. § 77-17-13 (2003).
No. 20040745 	12
opinion testimony is not based on the experience, training, or
specialized knowledge within the realm of an expert. 45
¶26 	In addition to the plain language of rule 701 and the
advisory committee’s note to the 2000 amendments to the federal
rule, policy considerations support our conclusion that testimony
based on specialized knowledge may be admitted only under rule
702. 	There is a substantial body of law that has been developed
to regulate the admissibility of expert testimony. 	Rule 702 has
a built-in requirement that an expert witness be “qualified.” 46
Under State v. Rimmasch 47 and its progeny, we have also required
a certain level of reliability for novel expert evidence. 48
Furthermore, our rules of civil procedure require parties to
provide more extensive notice of expert witnesses than of lay
witnesses. 49 	The Legislature has also imposed additional notice
obligations with respect to expert witnesses in criminal cases. 50
All of these rules illustrate the policy judgment that expert
testimony should be treated differently than lay testimony.
¶27 	Yet the State’s proposed rule would undermine the
objectives of this policy judgment. 	If testimony based on
specialized knowledge could be admitted through rule 701, or if,
as discussed above, fact testimony were admissible regardless of
whether it is based on specialized knowledge, litigants could
effectively avoid all of these requirements by offering the
testimony as lay testimony or by structuring their questioning to
elicit only factual responses. 	Interpreting the rules of
evidence to include such a broad loophole would frustrate the
intent of the rules.
¶28 	Before we address whether Chief Adair’s testimony is
indeed based on specialized knowledge, we pause to discuss
briefly how other jurisdictions have dealt with the issue of
whether opinion testimony based on specialized knowledge may be
admitted under rule 701. 	As we have said, when rule 701 of the

51 See Utah R. Evid. 701 advisory committee’s note.
52 See, e.g., United States v. Von Willie, 59 F.3d 922, 929
(9th Cir. 1995) (holding that an officer’s testimony as to the
nexus between the drug trade and guns was admissible under rule
701); United States v. Awan, 966 F.2d 1415, 1430-31 (11th Cir.
1992) (holding that a police officer’s testimony about the
meaning of code words in a tape-recorded conversation was lay
opinion testimony because it was based on his reasonable
perceptions and would be helpful to a clear understanding of his
testimony); Burlington N. R.R. Co. v. Nebraska, 802 F.2d 994,
1004 (8th Cir. 1986) (holding that testimony regarding the safety
of cabooseless trains was based on the railroad executives’
personal perception gained over their years of experience and was
therefore admissible as lay testimony); United States v. Sweeney,
688 F.2d 1131, 1145 (7th Cir. 1982) (holding that a witness’s
testimony identifying a drug was admissible as lay opinion
testimony because the witness’s conclusion was based on the
personal perception that the drug had the same effect as other
drugs of the same type that he had used previously); State v.
Matthews, 720 So. 2d 153, 163 (La. Ct. App. 1998) (holding that
an officer’s testimony as to the street value of cocaine was not
expert testimony because it was within the officer’s personal
knowledge and experience as a narcotics officer); State v.
Frasure, 100 P.3d 1013, 1016 (Mont. 2004) (holding that the
police officers’ testimony that the amount of methamphetamine the
defendant possessed illustrated an intent to sell was lay opinion
testimony because it was rationally based on their perceptions
and helped give a clear understanding of whether the defendant
had the necessary intent); State v. Bunch, 408 S.E.2d 191, 193-94
(N.C. Ct. App. 1991) (holding that an officer’s testimony
concerning common practices of drug dealers is admissible lay
opinion testimony because it is based on personal knowledge and
helpful to the jury); Reece v. State, 878 S.W.2d 320, 324-25
(Tex. Ct. App. 1994) (holding that a police officer’s testimony
that the defendant’s actions were consistent with selling drugs
was lay opinion testimony, which was permissible because it was
(continued...)
13 	No. 20040745
Utah Rules of Evidence was adopted, it was the federal rule
verbatim. 51 	Although the federal rule was amended in 2000,
federal courts’ analyses of the federal rule prior to 2000 may be
helpful in the analysis of our rule. 	Likewise, the
interpretation of a rule by state courts whose rule is similarly
patterned after the original federal rule may also be helpful.
Accordingly, the State has cited many cases where courts have
concluded that testimony need satisfy only the two explicit
requirements of rule 701 to be admissible. 52 	In other words, the

52 (...continued)
based on the perception of that person and helpful to a clear
understanding of his testimony or the determination of a fact in
issue).
53 See cases cited supra note 52.
54 Certain Underwriters at Lloyd’s, London v. Sinkovich, 232
F.3d 200, 203 (4th Cir. 2000); Randolph v. Collectramatic, Inc.,
590 F.2d 844, 848 (10th Cir. 1979); see also United States v.
Novaton, 271 F.3d 968, 1009 n.9 (11th Cir. 2001) (stating without
deciding that under the amended version of rule 701 “experiences
which provided the testifying agents with a basis for rationally
perceiving the information provided in their opinion testimony in
this case would constitute ‘specialized knowledge’ that would now
be admissible only under Rule 702").
No. 20040745 	14
cases cited by the State hold that a court need not consider
whether the testimony is based on specialized knowledge but may
admit the testimony under rule 701 so long as it is
(1) “rationally based on the perceptions of the witness” and
(2) “helpful to a clear understanding of the witness’s testimony
or the determination of a fact in issue.” 53 	But other courts
have interpreted the pre-2000 federal rule 701 more narrowly.
They conclude that lay witnesses may testify regarding their
direct perceptions, but only a qualified expert may give
testimony that relies on scientific, technical, or other
specialized knowledge. 54 	As our discussion above illustrates, we
find the former courts’ interpretation unpersuasive and conclude
that the latter courts’ interpretation of the rules is correct.
¶29 	In sum, we conclude that rule 701 of the Utah Rules of
Evidence does not allow for admission of testimony based on
scientific, technical, or other specialized knowledge.
Ultimately, testimony based on specialized knowledge, whether in
the form of fact or opinion, may be admitted only as expert
testimony under rule 702 of the Utah Rules of Evidence. 	Thus, to
the extent that Chief Adair’s testimony was based on specialized
knowledge, it could not be admitted under rule 701 of the Utah
Rules of Evidence.
C. Chief Adair’s Testimony as to Personal Use Amounts of
Methamphetamine Was Based on Specialized Knowledge
¶30 	The State next argues that Chief Adair’s testimony is
not based on “specialized knowledge” as that term is used in rule
702. 	Chief Adair testified that for personal use, individuals
typically purchase “[a] quarter or half grams [sic][,] . . .

55 State v. Bankhead, 514 P.2d 800, 803 (Utah 1973).
56 Fillmore City v. Reeve, 571 P.2d 1316, 1319 (Utah 1977);
see also Marsh v. Irvine, 449 P.2d 996, 999 (Utah 1969) (“When it
appears that the determination of an issue will be aided by
knowledge of something which is not generally known by laymen, it
is in order to permit one who has specialized knowledge on the
subject, and thus may properly be called an expert, to testify
. . . .”); Hooper v. GMC, 260 P.2d 549, 552 (Utah 1953)
(“[W]itnesses possessing peculiar skill or knowledge--that is
experts--are admissible where the subject matter is not one of
common observation or knowledge.”).
57 United States v. Markum, 4 F.3d 891, 896 (10th Cir.
1993).
58 United States v. Figueroa-Lopez, 125 F.3d 1241, 1245-46
(9th Cir. 1997).
59 125 F.3d 1241.
60 933 F.2d 1519 (10th Cir. 1991).
15 	No. 20040745
[m]aybe even at the most a gram.” 	Chief Adair also testified
that it is not common for “someone who had personal quantities of
methamphetamine to have scales.” 	We conclude that this is expert
testimony because it is based on Chief Adair’s “specialized
knowledge.”
¶31 	We have previously held that a police officer may be
qualified as an expert to testify that a certain quantity of
drugs is possessed for distribution purposes, 55 but we have never
specifically held that this type of testimony is based on
“specialized knowledge” such that only an expert could give it.
Although we have not directly defined the term specialized
knowledge as it relates to our current rules of evidence, we have
noted in the past that specialized knowledge is knowledge “with
which lay persons are not familiar.” 56 	Other courts have
similarly defined specialized knowledge as “beyond the ken of the
average juror” 57 or outside the knowledge of a “civilian
bystander.” 58
¶32 	These definitions are consistent with the treatment of
specialized knowledge in two federal cases that we find
persuasive: United States v. Figueroa-Lopez from the Ninth
Circuit, 59 and United States v. McDonald from the Tenth Circuit. 60
In Figueroa-Lopez, the Ninth Circuit held that a police officer’s
testimony regarding the techniques of a drug dealer was based on

61 125 F.3d at 1245-46.
62 Id. at 1246.
63 Id.
64 933 F.2d at 1522.
65 Id.
66 Id.
67 836 S.W.2d 530, 549 (Tenn. 1992).
No. 20040745 	16
specialized knowledge. 61 	The court noted that to hold otherwise
would “blur[] the distinction” between rule 701 and 702 and allow
the government to offer specialized opinions without establishing
the requisite qualifications or providing the requisite notice. 62
“The mere percipience of a witness to the facts on which he
wishes to tender an opinion does not trump rule 702. 	Otherwise,
a layperson witnessing the removal of a bullet from a heart
during an autopsy could opine as to the cause of the decedent’s
death.” 63
¶33 	In McDonald, the Tenth Circuit adopted a similar
definition of specialized knowledge. 64 	It concluded that the
question of whether testimony was based on specialized knowledge
was “a common-sense inquiry of whether a juror would be able to
understand the evidence without specialized knowledge concerning
the subject.” 65 	In that case, the court determined that
testimony regarding the significance of 6.7 grams of rock cocaine
was based on specialized knowledge because a “person possessing
no knowledge of the drug world would find the importance of this
fact impossible to understand. 	The average juror would not know
whether this quantity is a mere trace, or sufficient to pollute
1,000 people.” 66
¶34 	Consistent with these authorities, we hold that the
test for determining whether testimony must be provided by an
expert is whether the testimony requires that the witness have
scientific, technical, or other specialized knowledge; in other
words, whether an average bystander would be able to provide the
same testimony. 	We recognize that the advisory committee’s note
to federal rule 701 incorporates the distinction between expert
and lay testimony set forth in State v. Brown 67 that “lay
testimony ‘results from a process of reasoning familiar in
everyday life,’ while expert testimony ‘results from a process of
reasoning which can be mastered only by specialists in the

68 Fed. R. Evid. 701 advisory committee’s note on 2000
amendments (quoting Brown, 836 S.W.2d at 549).
69 748 P.2d 188 (Utah 1987).
70 Id. at 191.
71 Id. at 190.
72 Id. at 191.
17 	No. 20040745
field.’” 68 	This “process of reasoning” language is unhelpful,
however, because even highly technical or scientific testimony
may be based on simple inductive or deductive reasoning that the
average person uses every day. 	Thus, the real distinction must
be based on the level of knowledge that witnesses have from which
they can draw their conclusions. 	If that knowledge is not within
the ken of the average bystander, then it is properly
characterized as specialized knowledge.
¶35 	Our definition of specialized knowledge is consistent
with our holding in State v. Ellis.69 	In that case, we noted
that although an expert may be able to opine on a certain set of
facts, it does not necessarily follow that only an expert may
give such an opinion. 70 	In Ellis, a security guard was allowed
to testify that footprints outside a broken window looked like
the footprints inside the building. 71 	We reasoned that just
because the similarity of footprints could have been
scientifically determined and confirmed in testimony by an expert
does not mean that an expert is the only witness capable of
providing such testimony. 72 	The security guard did not need
specialized knowledge to testify that the footprints looked
similar because that inference would be readily drawn by any
person who observed both sets of footprints.
¶36 	In this case, Chief Adair’s testimony that
methamphetamine is usually sold in quarter-to-half-gram portions
is not the type of testimony that could be offered by an average
bystander who had observed Rothlisberger’s and Althoff’s arrests.
Chief Adair’s testimony set forth a specific range of
methamphetamine quantities typifying personal use. 	His testimony
was based on specialized knowledge that was acquired through
extensive training and years of experience with the drug trade.
In sum, Chief Adair’s testimony is based on specialized knowledge
because the average bystander would be unable to provide the same
testimony. 	Accordingly, the court of appeals correctly
determined both that Chief Adair’s testimony was expert testimony

No. 20040745 	18
and that the district court erred in admitting that testimony
absent the required advance disclosure.
CONCLUSION
¶37 	We affirm the court of appeals’ conclusion that Chief
Adair’s testimony is properly characterized as expert testimony
and was therefore admissible only through rule 702 of the Utah
Rules of Evidence. 	First, rule 702 encompasses all expert
testimony, opinion and otherwise. 	Second, rule 701 does not
provide for admission of testimony based on specialized knowledge
because that rule states that the witness may not be testifying
as an expert. 	Third, Chief Adair’s testimony was based on
specialized knowledge because the average bystander would be
unable to present similar testimony. 	Finally, we do not consider
the State’s harmless error argument because it is not before us
on certiorari. 	We accordingly affirm the decision of the court
of appeals.
---
¶38 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.