Evidence- Admissibility of Expert Testimony

February 03, 2011

Lear v. Fields, 599 Ariz. Adv. Rep. 37 (App. Div. II, January 12, 2011) (J. Espinosa)
ARS SEC. 12-2203 ADOPTING DAUBERT STANDARD FOR ADMISSIBILITY OF EXPERT OPINION VIOLATES ARIZONA SUPREME COURT'S RULE-MAKING AUTHORITY AND CONSTITUTIONAL REQUIREMENT FOR SEPARATION OF POWERS

In this criminal action alleging child abuse the state sought to make its case in part with an expert on child abuse who would talk generally about the tendency of child abuse victims to delay in reporting sexual abuse, when victims of familial abuse often recant their claims and commonly exhibit "script memory". The defendant moved to preclude the expert because he did not meet the new standards set forth in ARS sec. 12-2203 requiring specific verification of scientific validity. The trial court held the statute usurped the supreme court's rule-making powers and therefore violated the Arizona Constitution's separation of powers doctrine. The Arizona Court of Appeals affirmed.

The Arizona Supreme Court enacted rule 702 of Evidence and adopted the Frye standard in applying that rule. As such, in Arizona where one by training, education or experience has knowledge lay people do not that will aid the jury, he or she may testify. In contrast the statute requires the trial court serve a gatekeeper function by conducting a hearing to determine whether the "reasoning or methodology underlying the testimony is scientifically valid." The trial court under the statute is to consider such things as whether the expert's theory or technique has been subjected to peer review and publication, the known or potential rate of error and whether the theory is generally accepted in the scientific community.

Because the Arizona Supreme Court considered adopting these same Daubert standards in Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000) and rejected them in favor of its enacted rule 702, the court of appeals here ruled it was obligated to follow Logerquist unless or until the supreme court decides to modify or reject its reasoning. Further, because ARS sec. 12-2203 affects the admissibility of expert testimony in all types of cases regardless of the substantive issues in the case, unlike ARS sec. 12-2604 requiring an affidavit from a medical expert only in medical negligence cases, it is procedural and not substantive. Thus while the medical negligence statute has been found not to violate the separation of powers clause in the Arizona Constitution because it was a substantive change in the law affecting only medical negligence cases, ARS sec. 12-2203 affecting all legal actions civil or criminal of any type, it does not impact the substantive law in any area but instead the procedural law in all areas.