§ 6.6 ADMISSIBILITY OF EVIDENCE

• Jurisdiction: Arizona

§ 6.6 ADMISSIBILITY OF EVIDENCE

§ 6.6.1 Frye Standard, see also § 6.6.11 Daubertt Standard Daubert v. Merrell Dow Pharms.,509 U.S. 579, 113 S. Ct. 2786 (1993)

Frye's general acceptance test was superseded by the adoption of the Federal Rules of Evidence. Rule 702 places appropriate limits on the admissibility of scientific evidence by assigning to the trial judge the task of ensuring that the expert's testimony both rests on reliable foundation and is relevant.

§ 6.6.2 Exigent Circumstances

State v. Flannigan,194 Ariz. 150, 978 P.2d 127 (App. Div. 1, 1998)

Absent express consent to a search, the police are entitled to conduct a warrantless seizure of a defendant's blood only if: (1) they have probable cause to believe that he has been operating his vehicle while under the influence of drugs; and (2) exigent circumstances justify dispensing with the warrant requirement. In this case, the officers' application of the department's untenable policy that exigent circumstances always exist in vehicular manslaughter and aggravated assault cases violated the defendant's right to be free from unreasonable search and seizure.

State v. Nissley,241 Ariz. 327, 387 P.3d 1256 (2017)

"[N]atural dissipation of alcohol in the bloodstream, by itself, does not establish a per se exigency that authorizes a warrantless blood test under medical blood draw exception to search-warrant requirement."

Missouri v. McNeely, U.S., 133 S. Ct. 1552 (2013)

Courts must consider all the facts in determining exigency, including natural dissipation of alcohol in the blood. Natural dissipation may create exigency, but it does not per se create exigency.

§ 6.6.3 Testimony Regarding Issues of Fact

Fuenning v. Superior Court,139 Ariz. 590, 680 P.2d 121 (1983)

Evidence of the manner in which the defendant was driving, the manner in which the defendant performed FSTs, and a videotape of the defendant's behavior are relevant to the jury's determination of whether test results are an accurate measurement of alcohol concentration at the time of the charged conduct. However, testimony that "parrots" words of DUI statutes embraces an issue of ultimate fact to be decided by the fact finder and is not permitted in court.

State v. Lummus,190 Ariz. 569, 950 P.2d 1190 (App. Div. 1, 1997)

The trial court is in the best position to assess the factors relating to whether particular questions regarding intoxication are permissible. While the officer testifying that on a scale of one to ten for intoxication the Defendant was a "ten plus," was the same thing as testifying that the Defendant was intoxicated, such does not, in this case, require reversal.

§ 6.6.4 Sufficiency of Evidence

State ex rel. McDougall v. Albrecht (Williams), 168 Ariz. 128, 811 P.2d 791 (App. Div. 1, 1991)

Evidence that a driver failed to stop at a red light and was speeding, coupled with the driver's poor performance of FSTs and physical signs of impairment, constitutes substantial evidence of impairment that supports the jury's verdict of DUI, even absent blood alcohol test results.

§ 6.6.5 Criminologist Testimony

State v. Superior Court (DeWolf),152 Ariz. 327, 732 P.2d 218 (App. Div. 2, 1986)

A criminologist may testify to the blood alcohol level at which the general scientific community believes all persons are impaired. In this case, the criminologist answered affirmatively when asked, "Are you saying sir, that at 0.08 every person in the world is impaired?" The court found this testimony to be admissible.

State v. Lundstrom,161 Ariz. 141, 776 P.2d 1067 (1989)

Under most circumstances, expert may testify as to substance of another expert's opinion if testifying expert reasonably relied on that other opinion in forming his own opinion. However, it is improper for an expert to testify to "facts or data" which act "as a conduit for another non-testifying expert's opinion." Ariz. R. Evid. 703 allows an expert to utilize facts or data made known to him at or before the trial; the text does not confine the expert to those facts made known to him and relied on by him for the preparation of a report. This type of testimony is subject to the balancing test found in Ariz. R. Evid. 403.

State ex rel. McDougall v. Albrecht (Williams),168 Ariz. 128, 811 P.2d 791 (App. Div. 1, 1991)

Admission of criminalist's testimony that estimated driver's blood alcohol content based upon his performance of FSTs was reversible error.

§ 6.6.6 Consumption After the Fact

State v. Superior Court (Weant),172 Ariz. 153, 835 P.2d 485 (App. Div. 1, 1992)

Blood and breath tests are admissible, absent a question of legality of the evidence, for the jury to weigh together with all other admissible evidence. The results of such tests should not be suppressed simply because the defense argues that the defendant consumed alcohol after the crash.

§ 6.6.7 Identity of Sources

State v. Flores,27 Ariz. App. 202, 552 P.2d 1217 (App. Div. 1, 1976)

In a probation revocation proceeding, the court can receive any reliable evidence to prove identity, including hearsay evidence. In this case, the trial judge proved the defendant's identity by comparing the signatures on a waiver of counsel form and guilty plea forms to the defendant's signature on a form from the underlying action.

State v. Forteson,8 Ariz. App. 468, 447 P.2d 560 (App. Div. 2, 1968)

The mere identity of names is not sufficient to show the actual identity of a person. However, to meet the burden of proving the actual identity of a person, the State is entitled to go to any reasonable source of evidence.

§ 6.6.8 Identifying of the Defendant

State v. King,180 Ariz. 268, 883 P.2d 1024 (1994)

The testimony of acquaintances of the defendant who recognized and identified him as the person depicted in videotape taken during the crime charged was permissible pursuant to Rule 701 of the Arizona Rules of Evidence, particularly since the defendant changed his appearance at the time of trial. Such testimony did not impermissibly provide witness opinion of guilt or innocence.

State v. Rocha-Rocha,188...