Evidence: Admissibility of Expert Testimony

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Law Updates -Evidence: Admissibility of Expert Testimony Arizona State Hospital v. Klein, 653 Ariz. Adv. Rep. 33 (App. Div. I, February 5, 2013) (J. Johnsen) ARIZONA RULE OF EVIDENCE 702 APPLIES TO TESTIMONY BY A MENTAL HEALTH EXPERT AT A TRIAL ON A PETITION FOR DISCHARGE FILED BY A COMMITTED PERSON UNDER ARIZONA'S SEXUALLY VIOLENT PERSONS ACT

Real party in interest Charles P. served a 10 year sentence for attempted molestation of a child. The superior court found him to be a sexually violent person under the Arizona Sexually Violent Persons Act [SVPA] (ARS sec. 36-3701 to -3717). Hence after serving his sentence he was committed to a center for treatment. The most recent annual psychological review authored by Ryan Goldstein stated he had made only "minimal progress" and if transferred to a less restrictive environment community safety would be in jeopardy. Nonetheless, Charles P petitioned the court for absolute discharge pursuant to ARS sec. 36-3714. The trial court set an evidentiary hearing. The center designated Goldstein as its expert for the hearing. Charles P. asked for a Daubert hearing under Rule 702 of the Arizona Rules of Evidence to challenge Goldstein's scientific methods-specifically his failure to use actuarial data. The center argued Rule 702 did not apply and that ARS sec. 36-3701(2) only requires Goldstein be a "competent professional." The center brought this special action contesting the trial court's decision to conduct a Daubert hearing despite ARS sec. 36-3701(2). The Arizona Court of Appeals accepted jurisdiction and denied the relief sought by the center.

The court of appeals noted that the Arizona Rules of Evidence "apply to proceedings in courts in the State of Arizona." Ariz R. Evid. 101(a). Further the SVPA expressly provides the rules of evidence and civil procedure apply to discharge hearings. ARS sec. 36-3704(B). Thus the trial court in a discharge hearing is empowered to preclude testimony of any mental health witness, even one found to be a "competent professional," if the court finds the proposed testimony does not comply with rule 702. Even though psychological testimony does not readily fit the Daubert factors the trial court is permitted to exercise discretion to determine the reliability and relevance of mental health expert testimony. The trial court should consider the "facts, data, theories and methods underlying the expert's opinion." To accomplish this the court may, but is not required to, hold a pretrial hearing. "Particularly in a bench trial such as a discharge proceeding, the court may decide to hear the evidence and objections to it and rule on its admissibility without conducting a separate hearing."

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