State v. Salazar-Mercado (5/29/14)

We follow the criminal cases, albeit loosely, because, as one of our former Chief Justices liked to point out, they make a lot of evidentiary law. This one involves the use of experts.

The defendant was an alleged child molester. The prosecution wanted to put on an expert to testify about a purported syndrome suffered by molestation victims that explains why (as here) their reports of abuse can be tardy and inconsistent. She knew nothing about these particular victims and would express no opinions about the case. The defense made a Daubert objection under our new version of Rule 702. The trial court admitted the testimony; the jury convicted; the Court of Appeals affirmed. The Supreme Court took review and now affirms, meaning that it wasn’t happy with CA2’s opinion.

The defense pointed out that the expert’s testimony was “cold” – i.e., simply explained a subject without reference to the facts of the case. (For some reason the opinion puts quotation marks around “cold” throughout, even after explaining its meaning; we like to think the author knows that usage does not strictly require or permit the subsequent marks and uses them to signal disdain for a cant term.) Rule 702(d) states that an expert can testify who “has reliably applied the principles and methods to the facts of the case.” The defense argued that since this witness hadn’t she couldn’t qualify. After discussing the history and development of Rule 702 the court concludes that it did nothing to prohibit cold testimony if that the witness otherwise qualifies as an expert. The court agrees with the State that 702(d) means that the expert must apply the principles reliably if he or she applies them at all.

The defense also argued, in essence, that the syndrome wasn’t scientifically recognized or accepted, citing cases from elsewhere that have questioned it. But the defense didn’t submit any data, studies or expert testimony to question the syndrome. (An amicus did on appeal but the court says that’s too late). And our courts have accepted such testimony in earlier cases (in fact prosecutors routinely call this expert to give this sort of testimony in this sort of case). There was also no request for a hearing under Rule 104 so that the defense could make a record on the issue. (The lesson is of course that you can’t do one of these challenges the cheap and easy way, just with legal argument.)

The court vacates most of CA2’s opinion, though, and de-publishes the remainder of it.

(link to opinion)