Monday, August 8, 2011

North Carolina To Get Daubert Standard?

As part of the tort reform legislation, the legislature amended rule 702. While this was intended to reduce the ability of plaintiffs to successfully sue doctors, it may have the unintended consequence of preventing the state from presenting junk science in criminal cases.

The new rule (new text in bold) reads:

"(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, if all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case."

For years, North Carolina Courts have rejected the Daubert test, a federal decision that creates a greater role for judges to act as gate-keepers before scientific evidence reaches the jury.

In recent years, federal agencies and others scientists have challenged the legitimacy of many "forensic sciences." Things like toolmark examination, bite mark examination, handwriting examination, trace DNA, etc. have all come under attack and many federal courts are refusing to allow entry of that type of evidence unless supported by reliable scientific evidence.

The North Carolina cases specifically reject Daubert and offer a more limited basis and give the courts wide latitude in determining reliability. See Howerton 358 N.C. 440 (2004) and Goode, 341 N.C. 513 (1995).

Daubert
focuses on whether the method is reliable and whether method was reliably applied to the data. NC Courts have focused if the expert used established techniques, the expert's professional background, and, a personal favorite, whether the expert used visual aids. In so doing, NC Courts have specifically acknowledged that the standard of reliability is lower in NC than in the feds.

The new rule mirrors some of the language in Daubert and moves away from the language of Goode. This seems to be strong support for adopting a Daubert standard here in NC and keeping out more of this junk science. How the court will analyze this issue, however, remains to be seen, as the act is not effective until October 1, 2011.

1 comment:

Elizabeth J. Neal said...

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