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Evidence: “Cold” Experts Permissible

State v. Salazar-Mercado, 687 Ariz. Adv. Rep. 9 (May 29, 2014) (J. Timmer)

ARIZ RULE OF EVID 702 ALLOWS EXPERT TESTIMONY THAT EDUCATES THE FACT FINDER RE GENERAL PRINCIPLES WITHOUT CONSIDERING PARTICULAR FACTS OF THE CASE

The defendant was found guilty on all but two counts of child molestation and sexual conduct with a minor and the court imposed sentences, the most severe of which was life in prison with eligibility for release in thirty-five years.  The defendant objected to the prosecution being allowed to call an expert on Child Sexual Abuse Accommodation Syndrome claiming the science did not meet the standards of the newly amended Rule 702 and accompanying Daubert/federal standards and further the expert was unreliable because she was “cold” being unfamiliar with the facts of the case and “blind” in that she had never met or interviewed the victims. Over objection she was allowed to testify explaining generally how children perceive sexual abuse, describing behaviors involving disclosure of abuse, and relating circumstances in which children may make false allegations. The Arizona Court of Appeals affirmed as did the Arizona Supreme Court.   The supreme court noted that the recently amended rule 702 was taken verbatim from the federal rule. The court explained that federal case law interpreting the rule as well as advisory notes, would be instructive to the Arizona courts in applying its new rule.  The court was especially influenced in finding 702 allows for “cold” experts based upon the first advisory note to the federal counterpart which expressly approved the longstanding rule of admitting cold testimony. Federal case law similarly cogently explained how the requirements of rules 702 and 403 can be met with such testimony. The court found that based upon the record presented here, the expert could assist the jury by educating it regarding sexual abuse victim behavior generally which the jury could ten in turn apply to the facts of the case as it found them.

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