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Judges conflicted on expert witness law; high court may intervene

Two judges have issued contradictory rulings on whether a new law regarding expert witnesses and testimony is constitutional, and attorneys are now asking the Arizona Supreme Court to decide the matter.

Attorneys for a murder suspect on Oct. 4 filed a request for special action with the Supreme Court. They’re hoping the high court will overturn a Maricopa County Superior Court judge’s ruling that the statute, which tightens standards for expert testimony, is unconstitutional.

But several weeks earlier, a Pinal County Superior Court judge reached the opposite conclusion, ruling that the statute passes constitutional muster. Pinal County Attorney James Walsh said he may seek a reversal of that ruling in the Supreme Court as well.

The issue at hand is whether a law passed earlier this year by the Legislature usurps the judiciary’s ability to decide the rules of evidence. The bill, SB1189, applies a higher standard on the admissibility of expert witnesses and testimony.

The guidelines, known as the Daubert standard, are used by the federal court system and numerous states, while Arizona still uses a benchmark known as the Frye standard.

“I don’t know whether we’re living under Daubert or Frye in Arizona,” said Taylor Young, an attorney with the Cavanaugh Law Firm.

On Sept. 23, Maricopa County Superior Court Judge Douglas Rayes ruled that the statute established by the bill violates the state Constitution’s separation of powers doctrine and usurps the Supreme Court’s right to set procedural rules for the courts. Rayes ruled that ARS 12-2203, which went into effect in July, violates Rule 702 of the Arizona Rules of Evidence.

The Legislature may supplement the rules of evidence, but cannot pass laws that conflict with them, Rayes said. The judge wrote in his ruling that the statute makes the trial court judge the “arbiter of witness credibility.”

“Here, the statute conflicts with Rule 702. The Supreme Court … specifically considered and rejected the interpretation of Rule 70s that placed a ‘gatekeeper’ function on the admissibility of purported scientific evidence with the trial court,” Rayes wrote.

Maricopa County prosecutors asked Rayes to find the statute unconstitutional after defense attorneys in several cases claimed the prosecution’s witnesses did not meet the new, higher standard set forth by SB1189. Bobbi Falduto, an attorney with the Maricopa Public Defender’s Office who represents murder suspect Joel Randu Escalante Orozco, said she challenged the admissibility of expert testimony on DNA evidence in her client’s case.

“Everybody looks at DNA as the gold standard. If you don’t challenge it, it comes in and it can be very prejudicial,” Falduto said.

Falduto said the Daubert standard adds reasonable supplemental rules of evidence to the standards already used by the courts. In cases such as hers, where her client may face the death penalty, the reliability of evidence is critically important.

“The state, they should hold (expert witnesses’) feet to the fire on the quality and reliability of the evidence that’s introduced in some of these cases,” she said. “This particular case is a capital case. A man’s life is at stake.”

Rayes’ ruling actually contradicts another ruling made on Sept. 7 by a superior court judge in Pinal County. Judge Boyd Johnson ruled that the statute is constitutional, writing that it only supplements the rules of evidence and does not seek to replace them.

“On its face, (ARS) 12-2203 is a procedural rule, and it is clear that the power to make such rules rests with the Arizona Supreme Court. That power, however, may be shared with legislative enactments,” Johnson wrote. “Courts will recognize Legislature-made rules if they are ‘reasonable and workable’ and ‘supplement the rules’ of the courts.”

Walsh, who said he prefers the Frye standard, said he may file a request for a special action as well. Walsh said opinion among prosecutors in Arizona is split as to whether courts should use Daubert or Frye. But regardless of their opinion on Frye, he said, most prosecutors were upset by the way the Legislature pushed through a change that should’ve been the domain of the Supreme Court.

“It’s always a question about how much the Legislature can intrude upon that. We think 1189 went too far. That’s the basis of our motion before Judge Johnson, and that would be the basis of any appeal,” Walsh said.

Changing major procedural rules is a lengthy, detailed process that can take as long as a year, Walsh said, and it involves a lot of input and public testimony. But SB1189 gave the judicial system only 90 days to prepare. And a floor amendment that applies the Daubert standard to criminal cases, as well as civil cases, was added at the end of the legislative session without any input or discussion.

“Aside from the merits of the Daubert standard versus the Frye standard, one of the real issues is if you’re going to change from one to the other, to make it an orderly transition,” Walsh said.

Prior to the new statute, Arizona used a standard of evidence known as the Frye standard. But SB1189 replaced that with a tougher benchmark known as the Daubert standard, which is used by the federal court system and numerous other states.

The Daubert standard puts stricter scrutiny on expert scientific testimony by applying standards such as methodology and peer review. The statute requires expert testimony to be based on sufficient facts and data, be the product of reliable principles and methods, and that expert witnesses apply the principles and methods to the facts of the case.

Young, who has years of expertise in dealing with expert witnesses, said the Frye standard essentially requires judges only to question whether scientific or technical testimony is generally accepted by the scientific community. If so, the testimony is acceptable.

Daubert goes a bit further, Young said. It requires judges to consider whether scientific theories are being applied in the right context and how they were reached.

“When people talk about the Daubert standard, they emphasize what is called the gate-keeping function. What the Daubert standard says is, when we look at a novel scientific theory or any really technical expert opinion … the judge is going to do much more than just defer to the scientific community,” Young said.

Rule 702 applies the lower Frye standard. It 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 otherwise.”

The Daubert standard is generally supported by the business community, Young said, because it prevents “junk science” from used in court. The Arizona Chamber of Commerce noted that establishing the Daubert standard was a high priority for the 2010 legislative session.

Walsh said a committee being chaired by Arizona Supreme Court Justice Andrew Hurwitz is contemplating changes to Rule 702 as well. The committee was formed earlier in the year to examine the Arizona Rules of Evidence as a whole, and it dedicated an entire meeting in September to the standards used for expert witnesses and testimony.

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