Friday, May 20, 2016
Will Missouri Adopt the Daubert Test for Expert Evidence?
Missouri is currently one of a minority of states that still applies the Frye test for determining the admissibility of expert evidence. This Frye test uses a single criterion: Does the technique or technology used by the expert have general acceptance in the relevant expert community? By way of contrast, a majority of states have adopted the Daubert test used in federal court. Under Daubert, judges serve as gatekeepers and determine the reliability/admissibility of expert evidence by looking at factors such as
(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
Will Missouri soon join the ranks of the states applying the Daubert test?
According to an opinion piece by Lisa Rickard in the St. Louis Dispatch, it is looking like the answer might be "yes." Rickard notes that
This session, the Legislature passed SB 591, a measure that would require Missouri courts to adopt a higher expert evidence standard known as Daubert.
An earlier piece describes the bill as follows:
The Missouri Senate has made it clear that tort reform is a priority. The body has taken quick action on legislation that sets standards for expert witnesses brought into court. Senate Bill 591 was perfected by the Missouri Senate on Jan. 19. Sponsored by Sen. Mike Parson, a Republican from Bolivar, Senate Bill 591 would provide the same high standards for trial evidence that is required in federal courts and many other states. Called the Daubert standard, it ensures that only evidence deemed relevant, reliable and provided by qualified individuals will be admitted as expert testimony.
While this bill is one of Missouri employers’ top priorities, the legislation is designed to protect all parties, Sen. Parson explained during debate on the bill.
“We want the right person on the stand testifying on behalf of Missourians. No matter who you are – whether you are in the jury, whether you are in the bar, whether you are the judge, whether you are a plaintiff or the defendant – if someone says they are an expert, they ought to be a qualified expert,” Parson said.
Here is the relevant language of Senate Bill 591:
SCS/SB 591 - This act provides that current standards for admitting expert testimony in a civil action shall apply to legal actions adjudicated in probate court, juvenile court, family courts, or in actions involving divorce, marriage, adoption, child support orders, or protective orders.
In all other legal actions an expert witness may testify in a court proceeding if the expert has specialized knowledge that will help the trier of fact understand the evidence, the testimony is based on sufficient facts and the product of reliable principles, and if the expert has reliably applied such principles to the facts of the case.
An expert may base an opinion on facts in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts in forming an opinion, the facts need not be admissible for the opinion to be admitted. If the facts would otherwise be inadmissable, the proponent may disclose them to the jury only if their probative value outweighs their prejudicial effect.
An expert witness shall not testify on the defendant's mental state which constitutes an element of the crime. An expert witness may state an opinion without first testifying to the underlying facts, but may be required to do so on cross-examination.