Category Archives: 702

Daubert in 12 Minutes

If you are working on a case where expert opinion testimony is anticipated, a quick primer on NC Rule of Evidence 702 and the Daubert standard is now available. Andrew DeSimone of the Appellate Defender’s Office has recorded Daubert in 12 Minutes which addresses the admissibility of expert testimony in North Carolina.

The primer discusses the 2011 changes to Rule 702 and the implications of those changes in criminal cases. DeSimone covers the relevance inquiry and “fit test,” the qualifications of the expert, and the 3-pronged reliability test from the federal rule and Daubert. DeSimone discusses the McGrady opinion’s application of the reliability test.

The program also is available for download on the Experts page of the IDS Forensic website.

Daubert in 12 Minutes with Audio from Sarah Olson on Vimeo.

 

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The Myth of the Reliability Test

UVA Law Professor Brandon Garrett and Innocence Project Director of Strategic Litigation M. Chris Fabricant wrote a law review article in the Fordham Law Review in March 2018 that examines whether Rule 702 is in fact functioning as a reliability test. The article is available for free download here. They looked at hundreds of state court criminal cases and found that “courts have largely neglected the critical language concerning reliability in the Rule.”

The article has a useful table that lists all 229 cases where admissibility of expert testimony was challenged under the 2000 revisions to Rule 702 in state courts. The table includes the type of evidence, whether the evidence was admitted, and which party was the proponent of the evidence. For North Carolina, 14 case are listed.

In the majority of the cases cited, courts ruled that the evidence is admissible based on prior rulings admitting that type of evidence or the qualification of the expert. In many cases, courts found that the defendant did not adequately preserve reliability-related objections at trial. Thirty-four cases affirmed the exclusion of defense expert testimony. Sixteen cases ruled prosecution witnesses should have been excluded.

For attorneys who are considering making a challenge to expert testimony, this article gives the lay of the land for these types of challenges and makes the case for defense counsel needing to sufficiently preserve the record so these decisions are reviewable on appeal.

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