Arizona's Adoption of Federal Rule of Evidence 702
March 2012

As we rang in 2012, the Arizona Supreme Court tolled the bell for Logerquist, its decade-old standard for the admissibility of expert testimony, adopting instead Federal Rule of Evidence 702. This made our ears perk up, and we sat down to figure out exactly what the rule change means, and what it doesn’t mean, to practice in state court.

This article examines the approach courts now use in regard to expert witness testimony. (For detailed background on the admissibility of such testimony before this year, see the sidebar on p. 46.)

The Legislature and Supreme Court Act

In 2010, a move toward Daubert began down two tracks in Arizona. First, a bill was introduced in the Arizona Legislature in early 2010 to adopt Daubert. The bill was signed into law, taking effect in July 2010 at A.R.S. § 12- 2203. The statute requires expert opinions to be “the product of reliable principles and methods” and requires experts to have “reliably applie[d] the principles and methods to the facts of the case.” It also requires courts to consider the Daubert factors (testing, peer review, error rate, and general acceptance), “if applicable.”

The constitutionality of § 12-2203 was immediately challenged by the State in a sexual abuse case when the defendant sought to preclude the prosecution’s expert on child sexual abuse accommodation syndrome. The prosecution argued that the statute violated separation of powers by infringing on the Arizona Supreme Court’s rule-making authority. The trial court agreed and held the statute unconstitutional. That decision was upheld by the Arizona Court of Appeals in early 2011.

While the Legislature was enacting § 12-2203, Chief Justice Berch established an Ad Hoc Committee on Rules of Evidence in March 2010, charging the committee with comparing the Arizona Rules to the restyled Federal Rules and providing input on possible conforming changes to the Arizona Rules. The committee consisted of nine
members and was chaired by Vice Chief Justice Hurwitz.

The committee held two public hearings to allow for discussion of Rule 702. At those hearings, current and former federal and state court judges, among others, spoke on the issue of sticking with Frye/Logerquist or moving to the federal standard. Discussion in favor of the federal standard focused largely on achieving consistency with the federal courts, while discussion against focused on concerns with taking fact-finding functions away from the jury and with the added time and expense in conducting Daubert hearings. During those public committee hearings, a hybrid approach was offered to adopt in part Federal Rule 702, but omit the requirement that the expert reliably apply the principles and methods to the facts of the case.

In the end, the committee was split on the issue of keeping Rule 72 as is, revising it to conform to the federal rule, or taking the hybrid approach of partial adoption of the federal rule. The committee’s December 2010 Petition to amend the Arizona Rules of Evidence thus did not take a position with respect to Rule 702, but instead laid out the three options for the Supreme Court’s consideration.

In September 2011, the Arizona Supreme Court adopted an amendment to Rule 702 to conform to the federal rule. The new language of Rule 702 (identical to the federal rule) is:

    A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

When Does Amended Rule 702 Apply?

Amended Rule 702 went into effect on January 1, 2012, without any explicit language regarding retroactivity. Generally, though, procedural rules apply even on the issue of keeping Rule 702 as is, to lawsuits filed before their enactment. In evaluating § 12-2203, the Court of Appeals held that a change in the general standard for expert testimony is procedural rather than substantive. Amended Rule 702 is therefore likely to govern any expert testimony proffered after January 1, 2012, even if the lawsuit arose and an expert was designated before that date. ...


To download the full article on Federal Rule 702, please click here.

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