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I.Introduction: Recent Amendments to Federal and State Evidence Rules.
On December 1, 2000, the Federal Rules of Evidence were significantly amended. See Fed. R. Evid. 103, 404, 701, 702,
703, 803(6), and 902(11) & (12) (2001). The amendments dealt with definitive evidence rulings (Rule 103), character evidence (Rule 404), expert testimony (Rules 701, 702 & 703), and
authentication of business records (Rules 803(6) and 902(11) & (12)).
Before those federal amendments became effective, the Utah Supreme Court's Advisory Committee on the Rules of Evidence ("Advisory Committee") considered whether to recommend adoption of
corresponding amendments to the Utah Rules of Evidence. After detailed analysis and discussion, the Advisory Committee recommended adoption of corresponding changes to Utah R. Evid. 103, 404, 701,
702, 703, 803(6), and 902(11) & (12), submitting its proposal for comment.
The proposed amendments to Utah R. Evid. 103, 404, 803(6) and 902(11) & (12) were not controversial. On August 15, 2001, the Utah Supreme Court adopted those changes, effective November 1, 2001.
(See Order of Aug. 15, 2001, In re: Proposed Amendments to Rules 103, 404, 701, 702, 703, 803 and 902 of the Utah Rules of Evidence, No. 20010570-SC (hereinafter "8/15/01 S. Ct. Order").
The proposed amendments to expert witness rules, Utah R. Evid. 701, 702 & 703, would have resulted in important changes in the handling of expert testimony in Utah state courts. The Committee
received a substantial number of negative comments from various trial lawyers, raising concerns that the proposed amendments were not necessary and would be unduly restrictive and costly. The Utah
Supreme Court ultimately declined to adopt the December 1, 2000 amendments to Fed. R. Evid. 701, 702 & 703. (See 8/15/01 S. Ct. Order.) About the time the Supreme Court was considering these
proposed amendments, it was in the process of issuing several important opinions on the admissibility of expert testimony under Utah law.
This article discusses each of the November 1, 2001 amendments to the Utah Rules of Evidence, as well as the amendments rejected by the Utah Supreme Court, along with recent case law pertinent to
those accepted and rejected amendments. First, it discusses the amendment to Utah R. Evid. 103(a)(2), which deals with definitive evidence rulings. Second, it discusses the amendment to Utah R. Evid.
404 and recent decisions dealing with character evidence. Third, this article discusses the Utah Supreme Court's rejection of proposed amendments to Utah R. Evid. 701, 702 and 703, along with recent
Utah case law indicating a growing divergence between federal and state approaches to handling expert testimony. Finally, this article discusses the amendments to Utah R. Evid. 803(6) and 902(11)
& (12), which make admission of business records more simple.
II. Definitive Evidence Rulings: Utah R. Evid. 103
The Utah Supreme Court adopted a one-sentence addition to Utah R. Evid. 103(a)(2), making it consistent with the December 1, 2000 amendment
to Fed. R. Evid. 103(a)(2). The federal advisory committee 2000 amendment note explains: "The amendment clarifies that a claim of error with respect to a definitive ruling is preserved for
review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a)." Fed. R. Evid. 103 advisory committee's note (2000). The federal note adds: "The
amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point." Id. However, the federal note explains: "Even where the court's ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered." Id.
Effective November 1, 2001, amended Utah R. Evid. 103(a) reads:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not
apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions
were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.
(Underlined material reflects November 1, 2001 amendment.)
III.Character Evidence: Utah R. Evid. 404
The Utah Supreme Court also adopted an amendment conforming Utah R. Evid. 404 with its federal counterpart. In part, this amendment was designed to
"provide that when the accused attacks the character of an alleged victim under subdivision (a)(2) of [Rule 404], the door is opened to an attack on the same character trait of the
accused." See Fed. R. Evid. 404 advisory committee's note (2000). In addition, the federal amendment was "designed to permit a more balanced presentation of character evidence when an
accused chooses to attack the character of the alleged victim." Id. The Utah Amendment also deleted the last sentence of Utah R. Evid. 404(b), in order to make the Utah rule consistent with its
federal counterpart. The Utah Advisory Committee Note explains that "the deletion of that language is not intended to reinstate the holding of State v. Doporto, 935 P.2d 484 (Utah
1997)," a case which had restricted the admission of Rule 404(b) evidence. The amendment also adds a notice requirement for Rule 404(b) evidence in criminal cases.
Effective November 1, 2001, amended Utah R. Evid. 404 reads:
Utah R. Evid. 404. Character evidence not admissible to prove conduct; exceptions; other crimes. [Underlined and stricken material reflects November 1, 2001 amendment.]
(a) Character evidence
generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;, or if evidence of a trait of character of the alleged
victim of the crime is offered by the accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused,
the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the nature of any such evidence it
intends to introduce at trial. In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 403.
Advisory Committee Note - Rule 404 is now Federal Rule of Evidence 404 verbatim. The 2001 amendments add the notice provisions already in the federal rule, add the amendments made to the
federal rule effective December 1, 2000, and delete language added to the Utah Rule 404(b) in 1998. However, the deletion of that language is not intended to reinstate the holding of State v. Doporto,
935 P.2d 484 (Utah 1997). Evidence sought to be admitted under Rule 404(b) must also conform with Rules 402 and 403 to be admissible.
Discussion of Issues Related to Rule Change:
In 1997, the Utah Supreme Court created a presumption against the admissibility of evidence of other crimes, wrongs or acts under Utah R. Evid.
404(b). See State v. Doporto, 935 P.2d 484, 491 (Utah 1997).
In 1998, the Court amended Utah R. Evid. 404(b) to reverse its holding in Doporto, as it explained in its later ruling in State v. Decorso,
1999 UT 57, ¦ 24, 993 P.2d 837, as follows:
¦ 24 [T]he [1998] advisory committee note to rule 404(b) explains that the 1998 amendment was intended "to return to the traditional application of rule 404 prior to Doporto." Although our pre-Doporto case law recognized the danger of prejudice which may flow from the admission of other crimes evidence, we had not before stated that there was a presumption against the admission of such evidence. See generally Featherson,
781 P.2d at 426-27; Shickles, 760 P.2d at 295-96. Thus, under the traditional application of 404(b), prior to Doporto, there was no presumption against the admission of other crimes
evidence if it was being offered for a proper, noncharacter purpose. Moreover, we see no necessity to import such a presumption into rule 404(b). Although that rule is exclusionary with respect to
other crimes evidence offered only to show the defendant's propensity to commit crime, it is an inclusionary rule with regard to other crimes evidence which is offered for a proper, noncharacter
purpose. See, e.g., 29 Am.Jur.2d Evidence ¤ 404 (1989) (stating that federal courts regard corresponding Fed. R. Evid. 404(b) as a rule of inclusion). Therefore, we hold that if other crimes evidence
is offered for a proper, noncharacter purpose, there is no presumption against admissibility.
Id. ¦ 24.
As the 2001 Advisory Committee note explains, the deletion of language in Utah R. Evid. 404(b) is not designed to retreat from this position, but rather to conform Utah R. Evid. 404(b) with its
corresponding federal evidence rule.
On July 13, 2001, the Utah Supreme Court reaffirmed its position that there is no presumption against evidence of prior misconduct. See State v. Widdison, 2001 UT 60, ¦ 41, 425 Utah Adv. Rep. 27. The Widdison case explains:
[E]vidence of prior misconduct is admissible under rule 404(b) if the evidence is relevant to a proper, noncharacter purpose, unless its danger for unfair prejudice and the like substantially
outweighs its probative value. State v. Decorso, 1999 UT 57, ¦20-23, 993 P.2d 837, cert. denied, 120 St. Ct. 1181 (2000).
When reviewing a trial court's decision to admit evidence under rule 404(b), we apply an abuse of discretion standard. Id. at ¦18. However, in the proper exercise of that discretion, trial judges must
"scrupulously" examine the evidence before it is admitted. Id.
2001 UT 60, ¦ 41 (affirming admission of other bad acts of defendant).
The holding in Widdison is consistent with several recent decisions affirming admission of prior misconduct relevant for a non-character purpose, when such evidence was admissible under Rules 402 and 403. State v. Reed, 2000 UT 68, ¦¦ 24-31, 8 P.3d 1025 (affirming admission of evidence of a pattern of conduct by child abuser towards victim); Salt Lake City v. Alires,
2000 UT App 244, ¦¦ 10-17, 9 P.3d 769 (evidence of defendant's prior disturbance of victim admissible to prove the identity of person making phone threats); State v. Nelson-Waggoner, 2000 UT
59, ¦¦ 17-32, 6 P.3d 1120 (affirming admission of evidence of other rapes by defendant to show absence of victim consent). See also State v. Martin, 2002 UT 34, ¦¦ 35-38, 44 P.3d 805 (error by
exclusion of Rule 405(a) evidence about the alleged victim after the prosecution had introduced evidence of the victim's character).
However, in circumstances where the prior bad acts of the defendant do not fit into one of the Rule 404(b) non-character categories, it is error to admit such evidence. State v. Webster, 2001
UT App 238, ¦¦ 31-37, 32 P.3d 976 (error to admit evidence of prior arrest for similar crime, where such evidence was not probative of identity or intent). Likewise, where such evidence of prior
misconduct cannot satisfy the requirements of Rule 403, it is appropriate to exclude it. See State v. Vargas, 2001 UT 5, ¦¦ 29-34, 20 P.3d 271 (holding that prior alleged false statements by
witness are properly excluded under Rule 404(b) by application of Rule 403 standards).
IV.Expert Testimony: Rejected Fed. R. Evid. 701, 702 & 703, and Recent Utah Case Law on Expert Testimony
The December 1, 2000 amendments to Fed. R. Evid. 701, 702 and 703 responded to United States Supreme Court decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases interpreting Daubert, including Kumho Tire Co. v. Carmichael,
119 S.Ct. 1167 (1999). These cases hold that all expert testimony, and not just expert testimony relying on scientific principles, is subject to the trial court's "gatekeeper" function of
screening to ensure relevance and reliability. This has opened the door for significant pretrial hearings in federal court dealing with the admissibility of expert testimony. In addition, the recent
amendments affect the ability of fact witnesses to offer expert opinions, and limit the ability of an expert witness to provide hearsay information to a jury.
After deliberation, the Advisory Committee voted to recommend amending Utah R. Evid. 701, 702 and 703 to conform to the December 1, 2000 amendments to the corresponding federal evidence rules. Such
amendments would have imposed more rigorous "gatekeeping" duties on state trial court judges in evaluating all types of expert testimony, and not just testimony based upon scientific
evidence as suggested in State v. Rimmasch, 775 P.2d 388 (Utah 1989). Several members of the Advisory Committee suggested that adoption of the federal rules in the Utah courts would impose
more rigorous requirements on the courts to screen out inappropriate expert testimony. In addition, the amendments would have imposed additional requirements of pretrial disclosure of lay witnesses
who offer expert opinions, and would have reduced a party's ability to get hearsay testimony to a jury through expert testimony.
The Utah Supreme Court rejected the proposed amendments. (See 8/15/01 S. Ct. Order.) Moreover, in a recent series of decisions, the Court has diverged from the federal approach in Kumho Tire, which requires the federal trial courts to apply the Daubert reliability analysis to all expert testimony. Rather, the Court has limited application of its Rimmasch analysis to novel scientific testimony. See, e.g., State v. Kelley,
2000 UT 41, 1 P.3d 546. Thus, while Utah trial courts still have the duty to assure that expert testimony meets the requirements of Utah R. Evid. 702 and 703, they have the duty to apply the Rimmasch analysis in limited circumstances. When the Rimmasch analysis does not apply, the Court states that the appropriate standard for admission of expert testimony is found in its 1982 opinion of State v. Clayton, 646 P.2d 723 (Utah 1982). See Kelley,
200 UT 41, ¦ 20.
A. Foundation for Admissibility of Expert Testimony
1. Fed. R. Evid. 702. [Underlined material reflects December 1, 2000 amendment.]
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
2. Utah R. Evid. 702. [Proposed changes to this rule were rejected by the Utah Supreme Court].
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise.
B. Lay Opinion Testimony
1. Fed. R. Evid. 701. [Underlined material reflects December 1, 2000 amendment.]
If the witness is not testifying as an expert, the witness' testimony in the form
of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or
the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
2. Utah R. Evid. 701. [Proposed changes to this rule were rejected by the Utah Supreme Court.]
If the witness is not testifying as an expert, the witness' testimony in the form of opinions
or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue.
C. Bases of Opinion Testimony by Experts
1. Fed. R. Evid. 703. [Underlined material reflects December 1, 2000 amendment.]
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible
shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion
substantially outweighs their prejudicial effect.
2. Utah R. Evid. 703. [Proposed changes to this rule were rejected by the Utah Supreme Court.]
The facts or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence.
Discussion of Issues Related to the Rejected Rule Changes:
Federal Approach: Amended Fed. R. Evid 702 reflects the United States Supreme Court rulings in Daubert and subsequent cases. In Daubert,
the Court required the trial court to ensure that scientific testimony or evidence is reliable and relevant, establishing a non-exclusive list of four factors. See 509 U.S. at 592-94. Later, in General Electric Co. v. Joiner,
522 U.S. 136 (1997), the Court held that the trial court is subject to an abuse of discretion standard in its Daubert analysis.
Then, in contrast to the Utah Supreme Court's analysis in recent cases, discussed below, the United States Supreme Court held in Kumho Tire that the Daubert reliability analysis should be applied to all types of expert testimony, not just expert testimony based upon scientific analysis. Kumho Tire,
119 S.Ct. at 1174-76. The Kumho Tire decision reasoned that "the evidentiary rationale that underlay the Court's basic Daubert 'gatekeeping' determination" was not
"limited to 'scientific' knowledge." 119 S. Ct. at 1174. The Court explained that the language of Rule 702 "makes no relevant distinction between 'scientific' knowledge and 'technical'
or 'other specialized' knowledge. . . . Hence, as a matter of language, the Rule applies its reliability standard to all 'scientific,' 'technical,' or 'other specialized' matters within its
scope." Id. The Kumho Tire Court then opined:
Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between "scientific"
knowledge and "technical" or "other specialized" knowledge. There is no clear line that divides the one from the others. Disciplines such as engineering rest upon scientific
knowledge. Pure scientific theory itself may depend for its development upon observation and properly engineered machinery. And conceptual efforts to distinguish the two are unlikely to produce
clear legal lines capable of application in particular cases. . . .
Id.
Utah Approach: Diverging from Kumho Tire, Utah decisions on the admissibility of expert testimony apply two different standards, depending on the type of expert analysis involved. Thus
the Utah decisions are wrestling with the difficult distinctions between scientific, technical and other specialized knowledge that the Kumho Tire decision expressly avoided.
Two general standards have emerged. The first standard requires the trial court to ensure reliability before admission of the scientific expert testimony. See, e.g., State v. Rimmasch, 775 P.2d 388 (Utah 1989); State v. Crosby,
927 P.2d 638, 641 (Utah 1996). The second standard requires the trial court to ensure the expertise of the witness, but applies a Rule 703 reliability analysis, and then provides that once this basic
foundation is laid, reliability goes to weight, not admissibility. State v. Clayton, 646 P.2d 723 (Utah 1982); State v. Kelley, 2000 UT 41, 1 P.3d 546.
The first standard, applying Rimmasch/Crosby, is generally applied to novel or newly discovered scientific principles or techniques. The second standard, applying Clayton/Kelley,
generally applies to non-scientific testimony, and to non-novel scientific testimony. However, as discussed below, whether the Rimmasch/Crosby or the Clayton/Kelley approaches apply to scientific
expert testimony is not always clear under the evolving caselaw.
In 1980, the Utah Supreme Court adopted an "inherent reliability" test for admission of expert testimony under Utah R. Evid. 702. See Phillips v. Jackson, 615 P.2d 1228 (Utah 1980).
Then in State v. Rimmasch, 775 P.2d 388 (Utah 1989), the Court established a three-part analysis to determine whether scientific evidence is admissible: (1) determination whether the scientific
principles and techniques underlying the expert's testimony are inherently reliable; (2) determination that scientific principles or techniques have been properly applied; and (3) determination
whether the scientific evidence will be more probative than prejudicial under Utah R. Evid. 403.
Later, in State v. Crosby, 927 P.2d 638 (Utah 1996), the Court held that the more restrictive Rimmasch test applies to scientific evidence in Utah courts, rather than the more general Daubert test. 927 P.2d at 640-42.
When faced with a similar question to that raised before the United States Supreme Court in Kumho Tire, the Utah Supreme Court diverged from the federal position, holding that the expert
reliability analysis of Rimmasch applies only to novel scientific evidence. See State v. Kelley, 2000 UT 41, ¦ 19, 1 P.3d 546 (Rimmasch test is inapplicable when there is no plausible
claim that expert testimony is based upon novel scientific principles or techniques); State v. Adams, 2000 UT 42, ¦ 16, 5 P.3d 642 (following Kelley).
On the issue of whether a trial court should apply a reliability analysis to all (not just scientific) expert testimony, contrast the following analysis by the Utah Supreme Court in Kelley and Adams with the analysis by the United States Supreme Court, quoted above, from Kumho Tire. The
Utah Supreme Court explained in Kelley:
¦ 19 We held in Rimmasch that while rule 703 is the general rule for the admission of all expert testimony, where expert testimony is based upon novel scientific principles or techniques, courts should apply the inherent reliability standard. See Rimmasch,
775 P.2d at 396. Here, there is no plausible claim that the type of expert testimony offered by the prosecution was based on novel scientific principles or techniques. . . . Thus, reliance on Rimmasch is misplaced.
¦ 20 The appropriate standard is set forth in State v. Clayton, 646 P.2d 723 (Utah 1982):
[O]nce the expert is qualified by the court, the witness may base his opinion on reports, writings or observations not in evidence which were made or compiled by others, so long as they are of a type
reasonably relied upon by experts in that particular field. The opposing party may challenge the suitability or reliability of such materials on cross-examination, but such challenge goes to the
weight to be given the testimony, not to its admissibility.
Id. at 726 (emphasis added); see also Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 839 (Utah 1984). The inquiry, then, is whether there was evidence supporting the trial court's
ruling that these types of tests are of the sort experts in Wright's field reasonably and regularly rely upon.
State v. Kelley, 2000 UT 41, ¦¦ 19-20 (emphasis in original).
Likewise, in Adams, the Utah Supreme Court rejected a broad-based application of Rimmasch, explaining that "Rimmasch is implicated only when the expert testimony is 'based on newly discovered principles.'" State v. Adams, 2000 UT 42, ¦ 16 (emphasis in original).
Thus, in cases involving non-novel or non-newly-discovered scientific expert testimony, the Utah Supreme Court has focused the reliability analysis on Utah R. Evid. 703, and away from the type of
gatekeeping analysis found in Rimmasch and Daubert.
On July 10, 2001, the Utah Supreme Court applied the Rimmasch analysis, further explaining its standards for admitting scientific evidence and making clear that trial court decisions on admission of expert testimony are subject to an abuse of discretion standard. State v. Butterfield,
2001 UT 59, 425 Utah Adv. Rep 8. In Butterfield, the Court held that the first prong of the Rimmasch analysis, which requires a threshold showing of the reliability of the scientific
principles and techniques, can be subject to judicial notice. Determining that the reliability of PCR STR DNA testing is subject to judicial notice, the Butterfield decision explains:
¦ 29 Rimmasch sets forth a three-part standard for admitting scientific or technical evidence under Utah Rule of Evidence 702. First, Rimmasch requires a threshold showing that the
scientific principles and techniques are "inherently reliable." 775 P.2d at 398. The court may take judicial notice of the inherent reliability of the scientific principles and techniques
at issue if they have been generally accepted by the "relevant scientific community." Brown, 948 P.2d at 340 (citing Rimmasch, 775 P.2d at 400). However, if judicial notice is
inappropriate, "the court must determine whether the party seeking to have the evidence admitted has sufficiently demonstrated the inherent reliability of the underlying principles and
techniques." State v. Crosby, 927 P.2d 638, 641 (Utah 1996) (citing Rimmasch, 775 P.2d at 400). This foundational showing must explore such questions as the correctness of the scientific principles underlying the testimony, the accuracy and reliability of the techniques utilized in applying the principles to the subject matter before the court and in reaching the conclusion expressed in the opinion, and the qualifications of those actually gathering the data and analyzing it. . . . In the absence of such a showing by the proponent of the evidence and a determination by the [trial] court as to its threshold reliability, the evidence is inadmissible.
Rimmasch, 775 P.2d at 403 (citation omitted).
¦ 30 If the proponent of the scientific evidence can demonstrate inherent reliability - by judicial notice or through a foundational showing - the trial court must then consider Rimmasch's second and third requirements. Brown, 948 P.2d at 341; Crosby, 927 P.2d at 641. "Rimmasch's second requirement is a 'determination that there is an adequate foundation for the proposed testimony, i.e., that the scientific principles or techniques have been properly applied to the facts of the particular case by qualified persons and that the testimony is founded on that work.'" Brown,
948 P.2d at 341 (quoting Rimmasch, 775 P.2d at 398 n. 7). Finally, Rimmasch's third requirement is a determination that the scientific evidence will be more probative than prejudicial as required by rule 403 of the Utah Rules of Evidence. See Rimmasch, 775 P.2d at 398 n.8.
State v. Butterfield, 2001 UT 59, ¦¦ 28-30.
Thus Butterfield raises questions about the Court's prior analysis in Kelley and Adams: If a scientific principle or technique can be subject to judicial notice because it is "generally accepted," then is that principle or technique "novel" or "newly discovered"? In Kelley and Adams,
the Court held that the Rimmasch analysis would not apply because the principles and techniques were not "novel" or "newly discovered." In Butterfield, however, the
Court applied second and third prongs of the Rimmasch test even though it determined that PCR STR DNA testing was so inherently reliable that the trial court could take judicial notice of its
reliability.
On July 10, 2001, the same day it issued Butterfield, the Utah Supreme Court issued another opinion discussing Utah R. Evid. 702. See State v. Mead, 2001 UT 58, ¦¦ 39-41, 425 Utah Adv. Rep. 16. The
Mead decision quotes the Rimmasch test as discussed in Crosby, even clarifying the third prong of Rimmasch. Id. ¦ 40 & n.6. However, Mead applied the Rimmasch/Crosby analysis to medical examiner's testimony, which was arguably a non-novel context.
On August 24, 2001, the Utah Supreme Court issued another decision applying the three-pronged Rimmasch analysis. See Brewer v. Denver & Rio Grand Western Railroad, 2001 UT 77, ¦¦
15-31, 427 Utah Adv. Rep. 11 (August 28, 2001). In Brewer, the Court analyzed in detail the expert's application of scientific principles and techniques under Rimmasch for an expert opinion about the cause of the plaintiff's carpal tunnel syndrome. Id. The Brewer opinion did not expressly discuss whether the testimony was "novel" or "non-novel," or whether the scientific principles were "newly discovered." Rather the parties apparently assumed that Rimmasch/Crosby test would apply. The Brewer opinion simply discussed Rimmasch/Crosby as applying generally to "scientific" testimony. Id.
Further raising questions about which test to apply is the July 27, 2001 opinion in Green v. Louder, 2001 UT 62, 29 P.3d 638. In Green, the Utah Supreme Court held that a trial court
erred in not permitting an accident reconstructionist to testify about the results produced "by an accident reconstruction computer program called Winslam." 2001 UT 62, ¦ 24. Even
though the expert testified that "he was unfamiliar with the principles and mathematical equations used by Winslam to estimate speed," the Supreme Court in Green held that it was in error for the trial court to exclude the results of that computer's calculations, based upon a Rule 703 test. The Court explained that Rimmasch dealt with expert testimony "based upon novel scientific principles or techniques." Id. ¦ 27. Because "use of computer software to perform complex mathematical calculations is certainly not based on novel scientific principles or techniques," the Court held that Rimmasch did not apply, but that the Clayton test should be used. Id. ¦¦ 27-28. The opponent of the testimony did not challenge "evidence that computer programs are generally used in the field of accident reconstruction," and thus "the Clayton standard was met," and the trial court committed error by excluding the results produced by the Winslam computer program. Id. ¦ 29.
Against this background are 2001 decisions determining whether non-scientific expert testimony was properly admitted under Utah R. Evid. 702. On July 27, 2001, the Utah Court of Appeals affirmed
admission of expert testimony of a roofing expert without conducting a detailed reliability analysis, basing its decision in admitting testimony from this non-scientific expert on his experience, and
based upon the usefulness of his testimony for the jury. See Pack v. Case, 2001 UT App 232, ¦¦ 33-35, 425 Utah Adv. Rep 20.
Further examining this issue of admitting non-scientific expert testimony is Campbell v. State Farm Mut. Auto Ins. Co., 2001 UT 89, ¦¦ 84-92, 840 P.3d 130. In Campbell, the Supreme Court
affirmed admission of non-scientific expert testimony under Utah R. Evid. 702 because it "must have greatly aided the jury's understanding of the issues." Id. ¦ 87. Then the Campbell Court affirmed the expert's reliance on documents under Clayton standard, explaining that the policy behind Rule 703 "is aimed at broadening the permissible bases of expert opinion." Id. ¦ 89.
Overall, the recent Utah scientific-expert cases raise issues about when the Rimmasch/Crosby or Clayton/Kelley analyses should apply to the following types of scientific expert testimony:
- Testimony based on novel scientific principles and techniques?
- Testimony based on newly discovered scientific principles and techniques?
- Testimony based on accepted/traditional scientific principles and or techniques, but applied in a novel way?
- Testimony based upon principles that are subject to judicial notice under Butterfield?
- As a practical matter in litigation, counsel can address the issues raised by the 2000-2001 Utah scientific expert cases by doing the following:
- Focusing on how expert testimony should be analyzed: scientific v. non-scientific; novel v. non-novel scientific.
- Addressing categorization of expert testimony in pretrial conferences.
- Addressing whether Rimmasch/Crosby or Clayton/Kelley should apply to the particular testimony.
Considering whether the testimony of a particular expert witness may fit in both categories.
In sum, the Utah Supreme Court's rejection of the federal approach to evidence Rules 702 and 703, combined with the preceding scientific-expert cases it decided in 2000 and 2001, raise uncertainties
about which standard to apply to the admission of scientific expert testimony in the Utah state courts. These issues will undoubtedly be further refined in future case law.
V.Easier Admission of Business Records: Amended Utah R. Evid. 803(6) and 902(11) & (12)
The Utah Supreme Court adopted changes to Utah R. Evid. 803(6) and 902(11) & (12) that correspond to changes in the federal counterparts to those rules. As explained by the Federal Advisory
Committee in discussing the amendment to Fed. R. Evid. 803(6): "The amendment provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without the
expense and inconvenience of producing time-consuming foundation witnesses." Fed. R. Evid. 803(6) advisory committee's note (2000). In short, these amendments make it easier to admit records of
regularly conducted activity under Utah R. Evid. 803(6).
Thus the foundation for admitting records of regularly conducted activity under Utah R. Evid. 803(6) can be laid "by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification,
unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Utah R. Evid. 803(6) (underlined material reflects November 1, 2001 amendment).
The November 1, 2001 amendment to Utah R. Evid. 902(11) & (12) provides that "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required" for
certified Rule 803(6) records of domestic activity. Subparts (11) & (12) contain the factual foundation that must be included in the certification. The certification may be made by affidavit or
written declaration. Under federal law, a witness can submit unsworn declarations under penalty of perjury, which have the effect of a sworn statement. See 28 U.S.C. ¤ 1746. The comment to Utah R.
Evid. 902 explains: "Utah has no comparable statute, so the requirements for declarations used under the rule are included within the rule itself."
In conclusion, the Advisory Committee meets on an ongoing basis to consider new evidence issues. The Committee's experience with the preceding November 1, 2001 amendments illustrates how members of
the bar can have an impact on proposed rule changes by submitting their opinions. The Committee encourages input and suggestions. See Utah R. Evid. 102 (evidence rules should be construed to secure
fairness and justice).
Footnotes
1 This article is adapted from materials presented on September 20, 2001 at the annual meeting of the Utah Judicial Council.
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