An Overview of Alabama's New Daubert-based Admissibility Standard
| Publication year | 2012 |
| Pages | 0197 |
By Professor Robert J. Goodwin
For several years there has been disagreement and debate over what admissibility standard Alabama courts should use for determining the admissibility of expert testimony. The central issue in this debate was whether Alabama should maintain its allegiance to the common law's Frye general acceptance testor abandon Frye and replace it with the Daubert test used by federal courts.
The Frye versus Daubert debate has ended. Recent amendments to § 12-21-160, Ala. Code (1975), and Rule 702 of the Alabama Rules of Evidence adopt a Daubert-based admissibility standard for determining the admissibility of scientific evidence. The Alabama Legislature acted first when it passed Act No. 2011-629 which amended § 12-21-160, Ala. Code (1975).1 Thereafter, on November 29, 2011, the Alabama Supreme Court amended Rule 702 of the Alabama Rules of Evidence to make the evidence rule "consistent" with § 12-21-160.2 Both amendments became effective January 1, 2012.
The move to a Daubert-based admissibility standard is significant and understandably presents questions about how the new test will be interpreted and applied. Additional issues are raised because Alabama's version of the Daubert test is not identical to the test used in federal courts. This article will examine admissibility requirements imposed by Alabama's new Daubert test and issues courts are likely to encounter as Daubert-related case law evolves. The first part of the article will focus on the amendment to Rule 702 that adopted the Daubert standard and how it changes Alabama evidence law in general. The second part is focused on requirements imposed by the Daubert standard.
As noted, Daubert's basic principles have been incorporated into an Alabama statute and Rule 702 of the Alabama Rules of Evidence. To promote readability and avoid confusion, this article will focus on amendment to Rule 702, however, provisions in the Daubert statute (i.e., the amendment to Ala. Code § 12-21-160) will be noted where appropriate. The Daubert statute and Rule 702, as amended, are set out side by side at the end of this article.
The Amendment to Rule 702 and the Daubert Statute
As a preliminary matter, the congruity of the Daubert statute Rule 702 should be noted. Rule 702 was amended after the Daubert statute was signed into law and clearly adopts the same Daubert-based admissibility standard for scientific evidence.3 Although there are minor differences in wording and organization, none appear significant.4 The most notable difference is not in the text of either amendment. The amendment to Rule 702 includes Advisory Committee's Notes and a Court Comment which provide guidance in interpreting and applying the new admissibility standard and its exceptions.5
As amended, Rule 702 provides:
Rule 702. Testimony by Experts
(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 proceedings in which the defendant was arrested on the charge or charges that are the subject of the proceedings on or after January 1, 2012. The provisions of this section (b) shall not apply to domestic-relations cases, child-support cases, juvenile cases or cases in the probate court. Even, however, in the cases and proceedings in which this section (b) does not apply, expert testimony relating to DNA analysis shall continue to be admissible under Ala. Code 1975, § 36-18-30.
(c) Nothing in this rule is intended to modify, supersede or amend any provisions of the Alabama Medical Liability Act of 1987 or the Alabama Medical Liability Act of 1996 or any judicial interpretation of those acts.
1. Rule 702(a): Nonscientific Experts and Evidence
The text of the former Rule 702 has not been amended. It is merely moved to a new section (a). The division of Rule 702 into separate sections helps distinguish Rule 702(a)'s admissibility requirements-which are applicable generally to all experts-from the Daubert-based requirements in Rule 702(b)-which are only applicable to scientific experts and evidence.6 Because there have been no changes to the former Rule 702, preexisting judicial authority construing Rule 702 remains applicable for interpreting and applying Rule 702(a).7
Three points related to preexisting judicial authority are worth emphasizing. First, requirements formerly imposed by Rule 702 (now Rule 702(a)) apply to all expert testimony as a precondition to admissibility-irrespective of whether the expert's testimony is based upon scientific, technical or other specialized knowledge.8 Second, Rule 702(a) imposes just two admissibility hurdles. The testifying witness must: (1) be "qualified as an expert," and (2) provide testimony that will "assist the trier of fact.9 Third, for non-scientific experts, these are the only admissibility requirements imposed by Rule 702(a).10
2. Rule 702(b): Scientific Experts Must Satisfy Daubert instead of Frye
Rule 702(b) defines the new admissibility standard. Although non-scientific experts and evidence must only satisfy the traditional admissibility requirements that now reside in Rule 702(a), scientific evidence must satisfy the requirements of Rule 702(a) and the additional admissibility hurdles set forth in Rule 702(b)(1)-(3). The imposition of additional admissibility requirements on scientific evidence beyond those imposed by Rule 702 (now Rule 702(a)) is not new to Alabama law. For decades Alabama courts imposed additional admissibility requirements on scientific evidence by application of the Frye general acceptance test.11 Rule 702(b) merely codifies this long-standing common law practice, but with one very significant change-a Daubert-based admissibility standard is substituted for the Frye standard.12
3. Rule 702(b): Exceptions (cases where the Daubert standard does not apply)
The provisions of Rule 702(b) (i.e., the Daubert admissibility criteria) do not apply in certain cases. The Daubert standard does not apply to domestic relations cases, child-support cases, juvenile cases or cases in the probate court, and in criminal actions, the Daubert standard applies "only to non-juvenile felony proceedings."13
The provision regarding the application of Rule 702(b) in criminal actions is oddly worded. Presumably, the phrase, "In criminal actions, this section [702(b)] shall apply only to non-juvenile felony proceedings," means that the Daubert admissibility standard only applies in proceedings where an adult is charged with a felony. A question arises as to whether and how the Daubert standard may be used in a criminal proceeding where an adult faces both felony and misdemeanor charges.
In sum, the list of exclusions-cases where Rule 702(b) and its Daubert-based admissibility criteria do not apply for determining the admissibility of scientific evidence-include:
1. domestic relations cases;
2. child support cases;
3. juvenile cases;
4. probate cases, and
5. criminal proceedings where an adult is charged with a misdemeanor.
If the provisions of Rule 702(b) do not apply in one of the above listed cases or proceedings, the Frye standard has not been supplanted, and, presumably, will continue to apply to determine the admissibility of scientific evidence.14
Finally, it should be noted that Rule 702(b) contains an exception to the exceptions for scientific expert testimony based on DNA analysis. Since 1994, expert testimony regarding DNA analysis has been governed by the Daubert standard pursuant to Ala. Code § 36-18-30.15 Rule 702(b) provides that § 36-18-30 continues to apply when the admissibility of DNA evidence is at issue in one of the excluded cases or proceedings.16 The Daubert statute does not address the admissibility of DNA evidence pursuant to § 36-18-30.
Issues Presented by the Amendment to Rule 702
What is "scientific" evidence?
Application of Rule 702 will require Alabama courts to distinguish "scientific" experts and evidence from "non-scientific" experts and evidence. This is a critical determination because scientific evidence is the only species of expert testimony subjected to scrutiny under Rule 702(b) and the Daubert test. Stated differently, it is the proffer of purported scientific evidence that "triggers" a Daubert inquiry.
As amended, Rule 702 requires courts to make two separate but related determinations regarding scientific evidence. First, pursuant to the first sentence in Rule 702(b), the trial court must determine whether proffered expert testimony purports to be scientific.17 If so, a Daubert admissibility inquiry is triggered, and the trial court then must determine whether the purportedly scientific evidence is "reliable"-that is, meets the three-pronged admissibility standard imposed by Rule 702(b)(1)-(3).Neither the Daubert opinion nor Federal Rule of Evidence 702 provides guidance in drawing the line between scientific and non-scientific evidence for these purposes. The Daubert opinion focused on the second issue; whether purportedly scientific evidence was reliable and admissible. Federal Rule 702 does not address the distinction between scientific and non-scientific...
To continue reading
Request your trial