SC Lawyer, Sepetember 2011, #2. Admissibility of Expert Testimony and Scientific Evidence: It Must Be Desired.

• Author: By Mary A. Giorgi and Nicholas R. Sanders

South Carolina BAR Journal

2011.

SC Lawyer, Sepetember 2011, #2.

Admissibility of Expert Testimony and Scientific Evidence: It Must Be Desired

South Carolina LawyerSepetember 2011Admissibility of Expert Testimony and Scientific Evidence: It Must Be Required to Be DesiredBy Mary A. Giorgi and Nicholas R. Sanders South Carolina litigators know that the success of a case, for both plaintiffs and defendants, often hinges on expert testimony and scientific evidence. Therefore, a common question for our courts is whether such vital evidence is admissible. Admissibility is determined in South Carolina based on Rule 702 of the South Carolina Rules of Evidence (SCRE) and on common law principles refined in the context of a number of seminal criminal cases, including State v. Councill. See State v. Council, 335 S.C. 1, 20-21, 515 S.E.2d 508, 518 (S.C. 1999).

Since deciding Council, South Carolina courts have generally been fairly liberal in qualifying experts to testify at trial, and motions to exclude brought under Rule 702 and State v. Council are not often granted. This article details the historical background of the admissibility of expert testimony in South Carolina and one recent decision that is instructive on the current duties of the trial court as gatekeeper of the admission of scientific evidence. Ultimately, the discussion of this recent decision vividly illustrates how litigants may not simply rely on unqualified expert testimony or unreliable scientific evidence to prove their cases.

Historical background of the admissibility of expert testimony in South Carolina

Pre-1990: State v. Jones

In 1979, the S.C. Supreme Court, in State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979), adopted a fairly liberal standard for trial courts to follow in admitting scientific evidence. State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (S.C. 1979). Under Jones, admissibility of expert evidence depended upon "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." Id. at 731, 259 S.E.2d at 124 (internal citations omitted). This language from Jones exclusively governed the area of admissibility of scientific evidence until 1990 when the S.C. Supreme Court gave further instruction to trial courts in State v. Ford. See Council, 335 S.C. at 19, 515 S.E.2d at 517.

1990-1995: State v. Ford and Rule 702

In 1990, the S.C. Supreme Court, in State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990), gave trial courts more detailed instruction on how to analyze the admissibility of scientific evidence under the Jones framework. State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (S.C. 1990). Under Ford, trial courts were to consider several factors pertaining to admissibility of scientific evidence, including: "(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures." Council, 335 S.C. at 19, 515 S.E.2d at 517; see Ford, 301 S.C. at 488-90, 392 S.E.2d at 783-84. The Ford court also expressly determined that the admissibility of scientific evidence is subject to attack for relevancy and prejudice. Ford, 301 S.C. at 490, 392 S.E.2d at 784.

Several years later, in 1995, South Carolina adopted Rule 702 of the SCRE, which is identical to its predecessor and Rule 702 of the Federal Rules of Evidence. Rule 702 of the SCRE states: "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...