Wednesday, March 26, 2014
Palmetto State: South Carolina Courts Don't Apply Daubert...Quite
For decades, the D.C. Circuit's opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), ruled the roost in terms of the admissibility of expert opinion testimony. Pursuant to Frye, a court was only to admit expert opinion testimony if it was based upon a technique, technology, etc. that had "general acceptance" in the relevant expert community.
In 1993, however, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court found that this Frye test no longer applied in cases governed by the Federal Rules of Evidence. In Daubert, the Court created the idea of judicial gatekeeper and held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, federal judges can consider factors such as
whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."
As I have previously noted, as of 2010, 30 states had "adopted or applied the Daubert standard to determine whether to admit a witness to testify as an expert in a given field." Mark R. Nash, Are We There Yet?: Gatekeepers, Daubert, and an Analysis of State v. White, 61 S.C. L. Rev. 897, 897 n.6 (2010). These states were:
(1) Alaska, (2) Arkansas, (3) Colorado, (4) Connecticut, (5) Delaware, (6) Georgia, (7) Hawai'i, (8) Idaho, (9) Indiana, (10) Iowa, (11) Kentucky, (12), Louisiana, (13) Maine, (14) Massachusetts, (15) Michigan, (16) Mississippi, (17) Montana, (18) Nebraska, (19) New Hampshire, (20) New Mexico, (21) Ohio, (22) Oklahoma, (23) Oregon, (24) Rhode Island, (25) South Dakota, (26) Tennessee, (27) Texas, (28) Vermont, (29) West Virginia, and (30) Wyoming.
South Carolina is not one of these states. So, what test does it apply?
As it turns out, South Carolina's test is not that different from the Daubert test. The Supreme Court of South Carolina noted in State v. Council, 515 S.E.2d 508, 517 (S.C. 1999), noted that the Palmetto State applies a test derived from State v. Jones, 259 S.E.2d 120 (S.C. 1999):
In considering the admissibility of scientific evidence under the Jones standard, the Court looks at several factors, including: (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.
The court then used this test to conclude that mitochondrial deoxyribonucleic acid (mtDNA) evidence was admissible in a trial for murder, kidnapping, administering poison, grand larceny of a vehicle, burglary, larceny, and two counts of criminal sexual conduct in the first degree.