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Evidence: Rule 702 Expert Witness Testimony Court as Gatekeeper

Posted by Ted A. Schmidt | Feb 10, 2016 | 0 Comments

State v. Romero, 730 Ariz. Adv. Rep. 4 (January 20, 2016) (C.J. Bales)


The defendant was convicted of second degree murder based in part upon the government's firearms expert testimony matching toolmarks on shell casings with the defendant's handgun. The trial court conducted a Daubert hearing finding the government's expert qualified to testify but precluding Defendant's expert based upon Rule 702 R. Evid. The Arizona Supreme Court vacated the trial court's ruling precluding the testimony of defendant's expert and remanded.

The trial court found that defendant's expert had no prior experience testifying as to firearms identification, had never conducted tool mark analysis or researched firearm's identification and therefore was unqualified to testify. The supreme court disagreed noting that defendant's expert was never held out as a firearm's expert but rather an experimental design expert—his testimony was proffered to help the jury understand how the methods used by firearms examiners in performing toolmark analysis differ from the scientific methods generally employed in designing experiments. In essence his testimony attacked the government expert's methodology and therefore the weight his testimony should be given. His qualifications as a “design expert” were more than adequate.

               Under Rule 702 .  .  . the opposing party is not restricted to challenging that expert by offering an expert from the                      same field or with the same qualifications. The trial court should not assess whether the opposing party's expert is                    as qualified as – or more convincing than – the other expert. Instead, the court should consider whether the                              proffered expert is qualified and will offer reliable testimony that is helpful to the jury.

Close questions should be decided in favor of allowing the testimony.  Here defendant's expert attacked the weight the testimony of the government's firearms examiner should be given. The weight to be given testimony is always for the jury.

Finally, the trial court improperly excluded defendant's expert on the secondary basis that to allow the testimony would essentially result in a second Daubert hearing. The court had already decided that the government's expert methodology and conclusions were sufficiently reliable thus finding it would be improper to allow the jury to overrule the court on this question. The supreme court held that the question of the weight and credibility are always jury questions, prior Daubert hearing or not.

The case was remanded to the Arizona Court of Appeals with direction it decide whether the preclusion of the defendant's expert testimony was harmless error.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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