By Alyson Grine, UNC School of Government Defender Educator
In S.L. 2011-283 (H 542), the General Assembly revised North Carolina Evidence Rule 702(a). Rule 702(a) guides the trial court in serving a gatekeeper function with regard to expert testimony; the trial court must make a preliminary determination as to whether a witness has the qualifications to testify as an expert, and if so, whether the expert’s testimony is admissible. S.L. 2011-283 was enacted as a part of new limits in civil tort actions; however, the amended rule applies to criminal cases as well as civil. Thus, criminal defenders are asking: to what extent has the framework for determining the admissibility of expert testimony changed?
The amendments to Chapter 8C, Rule 702(a) read:
(a) 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.opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
The legislation does not alter the language pertaining to the qualifications of an expert. Instead, the legislation adds the above subparts to impose restrictions on the admissibility of expert testimony. The subparts are lifted verbatim from Federal Rule of Evidence 702 as amended in 2000, which was intended to codify the criteria for the admissibility of expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert established the modern standard for admitting expert testimony in federal trials; the Court set out five factors for trial judges to use as a measure of reliability in making a preliminary determination about the admissibility of scientific evidence:
- Is the evidence based on a testable theory or technique;
- Has the theory or technique been subjected to peer review and publication;
- Does the technique have a known error rate;
- Are there standards controlling operation of the technique; and
- To what degree is the theory or technique generally accepted by the scientific community? Id. at 593-94.
In Howerton v. Arai Helmet, Ltc., 358 N.C. 440 (2004), the North Carolina Supreme Court rejected the federal standard for determining the admissibility of expert testimony. “North Carolina is not, nor has it ever been a Daubert jurisdiction.” Id. at 469. Instead, North Carolina has used the three-part inquiry set forth in Howerton: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?” Id. at 458, relying on State v. Goode, 341 N.C. 513, 527-29 (1995) (internal citations omitted). The first prong of the Howerton test includes a requirement that the expert’s method of proof be reliable, much like the second restriction in amended Rule 702(a). Unlike amended Rule 702(a), however, the Howerton test does not explicitly require that experts have sufficient facts and data for their opinions, or that they apply their methods reliably to the facts. Arguably, these were implicit requirements under Howerton as they are components of reliability. Some North Carolina decisions have recognized that experts should have sufficient facts and data for their opinions and should apply their methods reliably. See, e.g., State v. Grover, 142 N.C. App. 411, aff ’d per curiam, 354 N.C. 354 (2001). Amended Rule 702(a) makes it clear that trial judges must apply those requirements before allowing expert testimony before the jury.
The approach that North Carolina adopted in Howerton was “less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach.” Howerton, 358 N.C. at 464 (internal citations omitted); see also Robert P. Mosteller et al., North Carolina Evidentiary Foundations at pp. 10-15 to 10-17 (2d ed. 2006). Amended Rule 702(a) may or may not mandate the precise approach required by Daubert, but by adopting the language of Federal Rule 702, the General Assembly has raised the bar (or better stated, “the gate”), thereby requiring greater scrutiny of expert testimony than the former North Carolina rule and the cases interpreting it. Court actors should not presume that a method of proof that was deemed sufficiently reliable under the former North Carolina rule and Howerton will be admissible under the amended rule. The subparts added by S.L. 2011-283 are not a codification of Howerton, and it may no longer be good law. See Daubert, 509 U.S. at 586-87 (holding that the “general acceptance test” of Frye v. United States,54 App. D.C. 46 (1923) was superseded by the adoption of the Federal Rules of Evidence). In response to the legislative changes, defenders should be prepared to conduct more rigorous scrutiny of experts to determine admissibility, which will require probing discovery, motions, and voir dire practices to determine whether the expert’s testimony complies with the amended requirements.
As mentioned above, the amendments to Rule 702(a) are part of the “An Act to Provide Tort Reform for North Carolina Citizens and Businesses.” Possibly, the General Assembly did not have an eye to the impact the amendments would have on criminal practice in North Carolina. However, recent cases reveal growing concerns about unreliable expert testimony in criminal cases. See State v. Ward, 364 N.C. 133 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert identified substances based on a visual examination rather than a chemical analysis); State v. Davis, __ N.C. App. __, 702 S.E.2d 507 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert relied on odor analysis to conduct retrograde extrapolation of defendant’s blood alcohol concentration at time of accident); State v. Meadows, __ N.C. App. __, 687 S.E.2d 305 (2010) (expert’s testimony was not based on sufficiently reliable methods of proof where expert relied on the results of the NarTest machine). Thus, amended Rule 702(a) may be viewed as a timely reform in the criminal context.
Note: A later bill (SL 2011-317) makes the revised rule applicable to actions arising on or after October 1, 2011. For criminal cases, the rule likely applies to cases in which the offense occurred on or after that date.
How will we then determine if the testimony is based upon reliable principles and methods? Will we simply say to ourselves that because a method has been used for x decades that it is deemed to be reliable? Or will we require that validation of protocols be demonstrated? And then what will validation mean? Do we have instruction concerning that other than in Federal case law which NC Courts don’t seem to respect. This “Daubertization” in North Carolina has phenomenal consequences and I doubt that we will be able to function as counsel without concern for ineffectiveness claims if we don’t look at the science in all our cases involving forensic science. Who will prepare us with CLE’s to understand what this standard means?