Two More States Adopt Daubert, Bringing Total to 32

By Robert Ambrogi Esq
With two additional states having recently adopted the Daubert standard for the admission of expert testimony, the number of state court systems that follow the federal rule is now at 32. Notably, the latest two states to embrace Daubert – Arizona and Wisconsin – had both explicitly rejected it in the past.

Arizona was the most recent state to make the switch, after four decades of rigidly adhering to the standard set by the 1923 case, Frye v. United States, which the Supreme Court superseded with its 1993 opinion, Daubert v. Merrell Dow Pharmaceuticals. On Sept. 7, the Arizona Supreme Court issued an order amending the state’s Rules of Evidence to mirror Rule 702 of the Federal Rules of Evidence and the Daubert principles it embodies. The amendment takes effect on Jan. 1, 2012.

“The amendment recognizes that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue,” says the explanatory comment that accompanies the amendment.

“The amendment is not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony, nor is the amendment intended to permit a challenge to the testimony of every expert, preclude the testimony of experience-based experts, or prohibit testimony based on competing methodologies within a field of expertise,” the comment continues.

Interestingly, a year earlier, the Arizona legislature passed a bill making Daubert the law of the state. But in January the state Supreme Court struck down the law as unconstitutional. The Arizona constitution gives the Supreme Court the exclusive power “to make rules relative to all procedural matters in any court.”

Even so, legislative debate about the bill led the court to appoint an ad hoc committee to study the issue and then to solicit public comment. That process resulted in September’s order adopting the mirror image of the federal rule.

In Wisconsin, a Legislative Mandate

In contrast to what happened in Arizona, Wisconsin’s adoption of Daubert was the result of legislative, not judicial, action. Earlier this year, the Wisconsin legislature amended Section 907.02 of the Wisconsin Statutes to follow the standard contained in the federal Rule 702.

Before the new law took effect, Wisconsin applied a relevance standard, allowing scientific evidence to be admitted if it was relevant, if the witness was qualified as an expert and if the evidence would assist the trier of fact in determining a question of fact. Wisconsin’s courts had expressly rejected the Daubert test that considers the reliability of expert testimony.

Now, Section 907.02 is identical to the federal rule. The question remains whether the Wisconsin Supreme Court will uphold the change. In a criminal case decided less than a year before the new law, the Supreme Court had reiterated its express rejection of Daubert.

This summer, the Supreme Court had its first chance to address the constitutionality of the law. In a case involving the admissibility of evidence from an electronic home monitoring ankle bracelet, the court ruled that the evidence could be admitted without expert testimony. Because it held that no expert was required, it did not squarely address the new law. However, the court did acknowledge the law, noting, “Because we do not find expert testimony to be required, it is not necessary to consider the applicability of newly-amended § 907.02 to the facts of this case."

For now, at least, Daubert remains the rule in Wisconsin. “Wisconsin trial judges now must be ‘gatekeepers’ as to all expert testimony as to both relevancy and reliability,” Milwaukee County Circuit Judge John DiMotto explained on his blog Bench and Bar Experiences. “Absent a stipulation, Wisconsin trial judges should conduct a 901.04 hearing outside the presence of the jury to determine whether expert testimony will or will not be admitted. In that hearing the trial judge will be guided by Daubert factors and others from cases subsequent to Daubert.”

The Rule in 32 States

With the addition of Arizona and Wisconsin, there are now 32 states that follow the federal Daubert standard. The others are: Alaska, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawai'i, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wyoming.

Ironically, some legal scholars argue that a state’s choice to follow either Daubert or Frye ultimately makes little difference in how judges handle scientific evidence. A 2005 study published in the Virginia Law Review supported this contention, with the authors concluding that “debates about the practical merits and drawbacks of Daubert versus Frye may be largely superfluous.” With regard to how judges rule on scientific evidence, “we found no evidence that Frye or Daubert makes a difference,” they wrote.

Tell us: What impact do you think state's choice has on how judge's handle scientific evidence?

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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