Expert Witness Reliability Test
SDCL 19-9-7 and Rule 104(a) of the Federal Rules of Evidence provide in pertinent part: "Preliminary questions concerning the qualification of a person to be a witness ... shall be determined by the court ... ".
In Daubert, the Supreme Court mandated that judges, when faced with a proffer of expert scientific testimony, conduct a "gatekeeping" preliminary evaluation to determine whether the proffered testimony is allowable. 509 U.S. at 597, 113 S. Ct. at 2798-99, 125 L. Ed. 2d at 485.
Complementing SDCL 19-9-7 and Rule 104(a) are SDCL 19-9-9 and Rule 104(c), which further provide that "hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.
Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests."
See also, United States v. McVeigh, 955 F. Supp. 1278, 1279 (DColo 1997), aff'd, United States v. Nichols, 169 F.3d 1255 (10thCir 1999), cert. denied, Nichols v. United States, 528 U.S. 934, 120 S. Ct. 336, 145 L. Ed. 2d 262 (1999); 60 AmJurTrials the Daubert Challenge to the Admissibility of Scientific Evidence 25 (1996) hereinafter the Daubert Challenge (stating that whether a hearing is required outside the presence of a jury depends upon whether it is required in the interests of justice).
We have never had occasion to interpret SDCL 19-9-9, but in federal courts, full evidentiary hearings for preliminary Rule 104 assessments are not routinely used.
The Daubert Challenge, supra, 27. In United States v. Quinn, 18 F.3d 1461, 1465 (9thCir 1994), the court rejected the defendant's argument that he was entitled to a full evidentiary hearing on the reliability of an expert's scientific process.
Citing Daubert, the court stated, "we cannot conclude that the court abused the discretion trial courts must exercise in choosing the best manner in which to determine whether scientific evidence will assist a jury." Id.
Relying on the Ninth Circuit's decision in Quinn, the U.S. District Court for the District of New Jersey recently held that "the opponent of the proposed expert testimony must demonstrate a prima facie case of unreliability before an evidentiary hearing is required." Lanni v. State of New Jersey, 177 F.R.D. 295, 303 (DNJ 1998).
It reasoned that such a hearing was not required under Daubert and "would cause unnecessary expense and delay." Id.
See also, Hoult v. Hoult, 57 F.3d 1, 4-5 (1stCir 1995) (rejecting a defendant's argument that Daubert required the trial court to make a sua sponte, on-the-record ruling on the admissibility of expert testimony each time it is proffered, and declining to "shackle the district court with a mandatory and explicit reliability analysis," instead assuming that the trial court performs such an analysis sub silentio throughout the trial with respect to all expert testimony).
But see, Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 643 (7thCir 1995) (holding that the lower court "abdicated its responsibility under Rule 104(a) by failing to conduct a preliminary assessment of the admissibility of the plaintiff's expert testimony" before permitting the plaintiff's expert to testify, where the trial court expressly declined to rule on the defendant's challenge to the admissibility of such testimony, and instead directed a verdict in favor of defendants); State v. Quattrocchi, 681 A.2d 879, 884 (RI 1996) (stating that a preliminary examination out of the presence of the jury is necessary in cases involving scientific evidence about repressed memories, if such evidence is challenged).
Recently the United States Supreme Court, in ruling that the Daubert reliability factors are non-exclusive, granted a trial court wide latitude in determining how to test an expert's reliability.
The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert's relevant testimony is reliable.
Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "reviews a trial court's decision to admit or exclude expert testimony." General Electric Co. v. Joiner, 522 U.S. 136 at 138-139, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion.
Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary "reliability" proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises. Indeed, the Rules seek to avoid "unjustifiable expense and delay" as part of their search for "truth" and the "just determination" of proceedings. Fed. Rule Evid. 102.
The Supreme Court in Daubert set forth a list of factors which a trial court should consider when making a reliability determination:
(1) whether the theory can be and has been tested;
(2) whether the theory has been subjected to peer review and publication;
(3) the known or potential rate of error; and (4) the general acceptance of the theory in the scientific community. Daubert, 509 U.S. at 593-94, 113 S. Ct. at 2796-97, 125 L. Ed. 2d at 482-83. Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 152-53, 119 S. Ct. 1167, 1176, 143 L. Ed. 2d 238, 252-53 (1999) (emphasis in original).