Alabama’s Daubert Amendment: An Overview of the Current State of the Law and Resources for the Practitioner, 0718 ALBJ, 79 The Alabama Lawyer 254 (2018)
| Author | By Terrence W. McCarthy and Brooke G. Malcom |
| Position | Vol. 79 4 Pg. 254 |
By Terrence W. McCarthy and Brooke G. Malcom
Introduction
As most Alabama lawyers know, the Alabama Supreme Court amended Rule 702 of the Alabama Rules of Evidence effective January 1, 2012 to adopt a Daubert-based standard for the admissibility of expert scientific evidence. Before this amendment, the Alabama legislature had amended Ala. Code § 12-21-160 to adopt the Daubert standard for expert scientific evidence. To ensure consistency, the Alabama Supreme Court followed the legislature with the amendment to Rule 702.
Professor Robert Goodwin, who serves as the reporter to the advisory committee on the Alabama Rules of Evidence, provided an excellent overview of the new Daubert standard in an article published in the May 2012 edition of this publication.1 Professor Goodwin’s article has been, and remains, a “must read” for any lawyer who deals with expert witnesses in Alabama state courts. While this article will hit some highlights of the Daubert rule, those not familiar with this standard should consult Professor Goodwin’s article.
The Daubert amendment was on the books for more than five years before any substantive Alabama appellate decisions were issued on the amendment. On February 10, 2017, the silence ended when the Alabama Court of Criminal Appeals addressed the Daubert amendment in Payne v. State, CR-15-0225, 2017 WL 543151 (Ala. Crim. App. Feb. 10, 2017) (not yet released for publication). The Alabama Supreme Court followed on July 7, 2017 with Mazda Motor Corp. v. Hurst, No. 1140545, 2017 WL 2888857 (Ala. Jul. 7, 2017) (not yet released for publication). In both cases, the appellants challenged the rulings of the trial courts under Daubert. The trial courts’ decisions were affirmed.
Because most cases are resolved before they reach the appellate stage, these two appellate decisions are just the tip of the Daubert amendment iceberg. Without question, Alabama lawyers and judges frequently wrestle with the Daubert amendment and encounter issues that are not covered in these opinions. This article will address the current status of the Daubert amendment based on the Payne and Hurst decisions, and will outline practical considerations for Alabama attorneys when confronting the Daubert amendment.
A Brief Overview Of Ala. R. Evid. 702 and the Daubert Standard
The Alabama Rules of Evidence had an effective date of January 1, 1996.2 The version of Rule 702 at that time, entitled “Testimony by Experts,” read as follows: “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 or otherwise.”3
The original Rule 702 contained several requirements for expert testimony that remain in effect today. First, as was the case at common law before the passage of the rules of evidence, any expert witness must be qualified.4 The drafters of Rule 702 advised that “[t]he applicable law on this subject should remain largely as it was before the adoption of Rule 702. For example, under Rule 702 ‘qualification’ should continue to be defined broadly, so that one may gain an expertise through practical experience as well as through formal training or education.”5
Second, the original Rule 702 specified that expert testimony must “assist the trier of fact.”6 While the phrase “assist the trier of fact” was not new to Alabama, the passage of Rule 702 “change[d] the focus from whether the subject of the testimony is beyond common understanding to whether the expert’s opinion or testimony will assist the trier of fact.”[7] While experts historically were “permitted to give opinions only upon subjects that [were] held to be beyond the understanding of the average layperson,” the passage of Rule 702 made it “possible that an expert opinion or testimony on a question of common knowledge would be admitted by the trial judge as helpful to the trier of fact.”[8]
Third, the original Rule 702 provided that an expert could testify in the form of an opinion “or otherwise.”9 The use of the term “or otherwise” recognized the ability of an expert to give testimony “in non-opinion form.”[10] For example, “‘an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.’”11
These original Rule 702 provisions remain unchanged and are still in effect today with one caveat: today, they are contained in Rule 702(a), which became necessary with the passage of Rule 702(b) effective January 1, 2012.
While experts often base their opinions on scientific tests, the original Rule 702 did “not undertake to answer the question whether such tests possess sufficient reliability to be admissible.”12 As dictated by years of Alabama case law, that question was answered by using the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under that standard, “[s]cientific tests are admissible only when they have gained general acceptance in the particular field.”[13] More specifically, the Frye standard applied to underlying principles or techniques that were both “novel” and “scientific.”14 Thus, the Frye standard imposed an additional hurdle for “novel scientific” expert testimony, and it remained in effect after the passage of Rule 702 even though it was not explicitly mentioned in the text of the rule.
Around the time the original Alabama advisory committee was drafting the Alabama Rules of Evidence, the United States Supreme Court decided the case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Generally speaking, Daubert abrogated t he Frye test for scientific expert evidence in federal courts. Daubert instructed that the trial court is to serve as the “gatekeeper” for scientific expert evidence, and in that role, the trial court must assess whether the techniques used by the expert are both relevant and reliable. In performing this analysis, the United States Supreme Court identified the following non-exclusive factors the trial court may consider: (1) whether the expert’s theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique or theory is generally accepted within the relevant scientific community; (4) the known or potential rate of error of the technique or theory when applied; and (5) the existence and maintenance of standards controlling application of the technique.15
The issue in Daubert was the admissibility of “scientific” expert testimony. The decision did not address expert testimony in the form of “technical” or “other specialized knowledge.” Approximately six years later, in Kumho Tire Co., Ltd., et al. v. Carmichael, 526 U.S. 137 (1999), the United States Supreme Court held that the Daubert standard applies to all forms of expert testimony in the federal courts.16
While many states quickly followed the lead of the federal courts and adopted the Daubert standard for some or all expert testimony, Alabama did not. The exception is that, in 1994, the Alabama legislature adopted Ala. Code § 36-18-30, which adopted Daubert as the test for the admissibility of scientific expert testimony based on DNA analysis. Frye, however, remained the standard in Alabama for the admissibility of all other expert testimony that was considered novel and scientific.
This changed with the Alabama Supreme Court’s order dated November 29, 2011. This order, which added Rule 702(b), adopted Daubert as the standard in place of Frye for most scientific expert testimony. The text of Rule 702 is as follows: (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 or otherwise.
(b) In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:
1. The testimony is based on sufficient facts or data;
2. The testimony is the product of reliable principles and methods; and
3. The witness has applied the principles and methods reliably to the facts of the case.
The provisions of this section (b) shall apply to all civil state-court actions commenced on or after January 1, 2012. In criminal actions, this section shall apply only to non-juvenile felony...
To continue reading
Request your trial