What’s in a Name, Any way? Daubert/Council and Expert Testimony, 0921 SCBJ, SC Lawyer, September 2021, #40
| Author | By Daniel Coble |
| Position | Vol. 33 Issue 2 Pg. 40 |
Daubert/Council and Expert Testimony
By Daniel Coble
Ask any seasoned trial attorney and they will warn young attorneys about a common mistake with cross-examining an expert witness: you can never out-expert the expert. Whether it’s because the expert knows the material back and forth, received multiple degrees in their field, or simply has been cross-examined too many times to be caught off guard by an attorney’s question, it is difficult to have a stronger grasp of the subject matter than the, well, expert.
But the proponent of that expert, the one who does direct examination, must first get them on the stand and actually qualified to testify in their specific field. This is no easy task and requires an understanding of the rules of evidence, case law, and the field in which the expert is attempting to be qualified.
Federal standard
The standards for both federal court and state court in South Carolina are very similar and follow a similar path. The federal courts follow the Daubert[1] standard and state courts follow Council.2 Over the past two decades these two “extraordinarily”[3] similar standards have slowly drawn closer together – and in 2020, they briefly merged.4 Prior to 1993, the federal standard for expert testimony was the Frye standard.5 This standard essentially relied on the general acceptance of the scientific principle in the scientific field to which it belongs (“[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”).[6] After the Federal Rules of Evidence were adopted in 1973, many courts and commentators began to discuss whether or not the new expert rules superseded the Frye standard.7
In 1993, the United States Supreme Court overturned Frye and replaced the “generally accepted by the experts” standard with the Daubert standard – “the judge is the gatekeeper.” The Court agreed that Rule 702 of the Federal Rules of Evidence (“FRE”) superseded Frye and that nowhere “in the text of this Rule establishes ‘general acceptance’ as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a ‘general acceptance’ standard.”8 After 70 years of dominance, the Frye standard was replaced, and Daubert began its reign. Under Daubert, before expert testimony can be admitted into evidence, the trial court should assess its reliability based on the following factors: (1) testing of the theory/technique;
(2) subject to peer review or publication; (3) potential error rate; (4) standards; and (5) widespread acceptance.9
State standard
While the federal courts first followed Frye, then the new Rules of Evidence, and finally settled on Daubert, the expert evidence rules for South Carolina were similarly changing.
South Carolina officially enacted the South Carolina Rules of Evidence in September 1995. These rules generally reflected the Federal Rules of Evidence, which had been around since 1973. And these rules also generally reflected and were similar to the prior evidence rules of South Carolina common law.10 This continuation and similarity of common law evidence and the new rules of evidence also included the admissibility of expert testimony. Prior to the enactment of the South Carolina Rules of Evidence (“SCRE”), the South Carolina Supreme Court never accepted the Frye standard, but rather followed the standard set out in State v. Jones, which was “more liberal than the Frye standard.”11 The standard Jones set out for expert testimony was “the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom.”12
In 1999, the South Carolina Supreme Court handed down the seminal case on expert testimony: State v. Council.13 (For reference, when Council came out, the United States Supreme Court had interpreted Rules 702 and 703 as requiring a gatekeeper standard set out in Daubert, and South Carolina had adopted SCRE 702 and 703, which were identical to their respective federal rules at the time.).
In Council, the supreme court again rejected Frye as the standard for expert testimony and held that the Jones standard was still good law. The court also took this standard and listed several factors that should be used when considering the admissibility of expert testimony. These factors include: (1) publication and peer review; (2) prior application of the method; (3) quality control procedures; and (4) consistency of the method.14 The court was very specific that it was not adopting the Daubert standard and also that a trial court should apply the Jones factors (which are essentially the Council factors now after the case) as well as SCRE 702. Finally, the court held that the trial court should conduct an SCRE 403 ruling before admitting expert testimony.15
The Daubert/Council merger
In 2020, after more than two decades of Daubert and Council walking side by side, the South Carolina Supreme Court, in State v. Phillips, merged the two standards together into a new term: Daubert/Council16 . But what actually changed, if anything?
In State v. Phillips, the defendant was convicted of murder and possession of a weapon during the commission of a violent crime.17 The victim was found shot to death in his home and his pistol laying on top of him with his pockets pulled out. The defendant’s DNA was found on...
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