Alabama Rule of Evidence 702
This article will likely be interesting only to other lawyers and judges. So others may wish to skip this to avoid being put to sleep.
A few years ago, I was appointed by the Alabama Supreme Court to the Advisory Committee on the Alabama Rules of Evidence. I have enjoyed my time on the Committee and appreciate its members for the diverse points of view and the gravity with which they approach their duties. Former Justice Bernard Harwood, Chair of the Committee, recently hosted our meeting at his office in Tuscaloosa.
We met in order to discuss two aspects of Ala. R. Evid. 702. First, the propriety of adopting the language of the 2023 amendment to Rule 702 of the Federal Rules of Civil Procedure, and second whether to amend the current language of Ala. R. Evid. 702 to remove the limitation of the application of that rule solely to “scientific” evidence, contrary to the legislature’s treatment in Ala. Code §12-21-160 – frequently referred to as the Daubertstatute, referring to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
The first item, the 2023 amendment, was not a substantive change to the rules and the Federal Rules of Evidence Committee indicated so in their comments. It merely reiterated that trial courts must use the preponderance of evidence standard in reviewing all aspects its role as gatekeeper in allowing expert opinions into evidence.
When our Committee met in 2024, after the amendment was adopted by the US Supreme Court, we decided to table discussion until the federal courts had time to wrestle with the new language in order to see if any problems arose from its application. No significant problems in application have been identified, but some learned members remain concerned that misapplication of the language may yet crop up.
The second item, amending Ala. R. Evid. 702 to adopt full Daubert scrutiny of all expert testimony, not just scientific expert testimony, is a bit more complex and would mark a monumental change. First, Alabama has the unique position of having two branches of the government enabled to enact rules of court.
The Alabama Supreme Court has the authority to make such rules, including rules of evidence, but any such rule may be changed by an act of the Legislature. Ala. Const. Art. VI, §150. In my opinion, the wisdom of allowing the legislature to countermand a procedural rule adopted by the highest authority in the judicial branch is questionable as only a small minority have law degrees. But it is nonetheless in the Alabama Constitution of 1901.
In 2011, the Alabama Legislature enacted §12-21-160 which applied the Daubert standard for admissibility of solely scientific evidence. The statute excepted use of the Daubert standard in domestic relations cases, child support cases, juvenile cases or any case in probate court. In the year of the amendment to §12-21-160, the Advisory Committee on the Alabama Rules of Evidence recommended that the Alabama Supreme Court adopt an amendment to Rule 702 that mirrored the language of the new statute for purposes of consistency.
The Court agreed and adopted the current language of Ala. R. Evid. 702. Thereafter, the Alabama trial courts have applied the Daubert standard to “scientific” evidence but not to technical or other specialized knowledge such as fingerprint comparisons that are governed solely by part (a). Of course, the rule does not operate in a vacuum. Rules 401, 402 and 403 still apply.
Because the original Daubert opinion discussed scientific evidence only, many federal courts applied the new standard solely to scientific evidence. That changed with Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999) wherein the Court held that the Daubert standard applied also to opinions outside of scientific opinions. The Alabama Legislature was presumably aware of this expansion when it enacted §12-21-160 and chose to limit the application of the Daubert standard to scientific evidence.
The question being considered by the Committee is whether Ala. R. Evid. 702 should be changed to adopt the federal view and expand Daubert to expert opinions across the board. I should note that such a rule would countermand the legislature’s limitation of Daubert to scientific evidence by its enaction of §12-21-160.
The thoughts expressed at the recent meeting in favor of the change included the desire to be consistent with the federal rules and the desire to eliminate the struggle by courts to differentiate between “scientific” opinions and non-scientific or technical opinions, which has been difficult. Some would call the results inconsistent or inexplicable and others would call them fact specific and the result of a more flexible standard.
Thoughts in opposition were mainly that such a rule would potentially require a Daubert hearing on routine expert opinions such as treating physicians on causation and fingerprint analyses. Such an eventuality would obviously increase the cost of and time spent in litigation as well as expend judicial resources.
I would like to hear from the bench and bar on this subject if you have an opinion or can shed light on the issues involved.