Lawmakers approved a proposal to give judges more latitude to exclude expert testimony during a trial despite being cautioned that the measure might be as unconstitutional.
The bill requires the court to apply what is deemed to be a more stringent test in determining the admissibility of a scientific testimony in a case of personal injury, death or property damage.
The Senate rules attorney had told lawmakers in committee that S1505 is highly susceptible to separation of powers challenges.
The measure’s author, Sen. Barbara Leff, R-11, concurred that it is ultimately the courts that set their own rules and should they decide to sue, they would win.
But the Legislature has passed changes to court rules that the judiciary branch has accepted, as long as they do not completely undo the rules of evidence.
Leff said she wants the bill, approved during a committee of the whole proceeding on March 7, to make it through so the courts get the chance to accept or reject the “Daubert standard” that she wants adopted.
The last time that the Arizona Supreme Court deliberated on the matter was in 2000, when it stated that it would retain the Frye rule instead of the “Daubert test” in determining admissibility of scientific evidence.
Under the Frye rule, the admissibility of scientific testimony is based on whether it has gained general acceptance in its own field.
In 1993, the U.S. Supreme Court rejected the Frye test, saying that general acceptance is not a necessary precondition to admissibility of scientific evidence under the federal rules of evidence.
But Leff said the composition of the state’s high court has since changed, suggesting that justices might be more open to taking another look at the “Daubert standard.”
“This would go directly from the Legislature to the court, and they may choose to accept the standard and they have the right to do it. If they reject it, they basically would sue on that, and they would win, because the court has the ultimate power on what the rules of evidence should be,” she said.
The aim of the bill is to address “junk science,” according to the sponsor.
It seeks to ensure that “expert testimony is really expert, that there is some scientific basis behind that testimony,” Leff said.
Colleagues voted yes to the proposal during a committee of the whole deliberation on March 7.
That same week, the rules committee gave it its preliminary approval.
Leff, however, offered substantial changes to her bill. She successfully amended it to expand its scope to all civil proceedings.
As originally written, the bill prohibits the admission of scientific opinion in cases of personal injury, death or property damage, unless the court determines that the testimony is reliable and useful.
The amendment removed the requirement that the court consider whether the expert opinion or methodology used to arrive at the opinion is relied on by experts outside litigation.
The original bill prohibited the admission of a new methodology unless the proponent establishes that it has achieved general scientific acceptance. The amendment deleted that requirement as well.
The change also permitted the courts to consider “other factors specific to proffered testimony” in determining the admissibility of expert opinion.
Rules attorney: Bill could face court challenges
Joni Hoffman, the Senate rules attorney, had told lawmakers early in the week that the proposal is “highly susceptible to successful separation of powers challenges.”
“The Constitution gives the Supreme Court the power to decide what the rules of procedure are, and this bill… is basically letting the Legislature make that decision,” Hoffman said.
“And I think that it could be struck down, and that’s the reason for the separation of powers. It is the courts’ job to set rules of procedure, and evidence is considered a rule of procedure,” she added.
Hoffman described the bill as “unconstitutional.”
One criticism leveled against the bill is that it would limit what the jury could hear.
Sen. Robert Blendu, R-12, had raised this point several times, most recently during a Republican caucus meeting this month.
“I don’t think there should be a limit to what a jury can hear,” Blendu explained his no vote in committee on Feb. 14. The jury, whom he said he trusts, should be able to listen to the “good, the bad and the ugly.”
Another criticism is that judges do not have the expertise to determine what is or is not relevant scientific evidence.
“The judge doesn’t have to a make decision on the final outcome or the result of the scientific evidence, just the methodology that is used,” Leff countered.
The legal community is split on the issue.
“This has nothing to do with whether a judge likes or dislikes expert testimony. Judges in 50 states are currently doing that. It’s just another item of fact that judges have to consider when determining whether particular types of testimony should be heard by the jury. It is a reliability standard, the same way a judge has to determine whether a testimony is relevant,” lawyer Paul Giancola explained in committee.
But trial lawyer Richard Langerman said the bill gives a judge an additional reason to exclude testimony.
“(And it is) a basis which the judge frankly isn’t qualified to do, which is to determine the reliability of scientific evidence. The judge is not an expert in that field,” Langerman said.
“Would it apply to psychologists≠ The answer is it would and it would exclude all testimony based on clinical judgment because clinical judgment is not something that is subject to peer review,” he had testified.
“It is clinical judgment based on education, training and experience of a clinician… All of them every day use their clinical judgment to make life and death decisions and those life and death judgment decisions that they make are good enough to keep us healthy, but under this bill, they would not be good for a jury to hear,” he added.
The original bill requires the court to consider the following factors when examining an expert opinion:
• Whether its basis has been or could be tested.
• Whether the opinion and its basis have been subjected to peer review.
• Whether the basis is reliable and to what degree it has been accepted in the expert community.
• Whether the opinion or methodology is relied on by experts outside of litigation.