State v. Crosby

Decision Date29 October 1996
Docket NumberNo. 950453,950453
Citation927 P.2d 638
PartiesSTATE of Utah, Plaintiff and Appellee, v. Gertrude CROSBY, Defendant and Appellant.
CourtUtah Supreme Court

Jan Graham, Atty. Gen., Todd A. Utzinger, Asst. Atty. Gen., Ernest W. Jones, Salt Lake City, for plaintiff.

Candice A. Johnson, Salt Lake City, for defendant.

DURHAM, Justice:

The Utah Court of Appeals transferred this case for a determination of whether Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), states a different standard for admitting evidence pursuant to Federal Rule of Evidence 702 than we articulated for admission of evidence under Utah Rule of Evidence 702 in State v. Rimmasch, 775 P.2d 388 (Utah 1989), and if so, whether the Daubert standard should be adopted as the governing rule in Utah. Along with this certified question, this case presents three issues on appeal: (1) whether, given our determination of the certified question, the trial court properly excluded polygraph evidence under Utah Rule of Evidence 702, (2) whether the trial court properly admitted expert handwriting evidence under Utah Rule of Evidence 702, and (3) whether trial counsel rendered ineffective assistance by not objecting timely to the information charging defendant with three counts of theft.

I. BACKGROUND

Defendant Gertrude Crosby was employed as a bookkeeping clerk for Sign Services. Linda Townsend, the company's owner, alleged that between November of 1991 and June of 1992, Crosby misappropriated company funds for her personal use. Prior to charging Crosby, the prosecutor requested that Crosby and Townsend submit to polygraph examinations. Both agreed, and Sergeant Steve Bartlett, a state-licensed polygraph examiner, administered the tests. After reviewing the test results, Sergeant Bartlett scored Crosby a +7, concluding that she had been truthful in denying allegations of misappropriation of company funds. He then scored Townsend a -4, stating that it was inconclusive whether she had been truthful or deceptive. 1 The State then asked a second polygraph expert, Gale McCurdy, to examine the test results. He scored Crosby a +4 and Townsend a -5, stating that he considered the results of both tests to be inconclusive.

Despite the inconclusiveness of the polygraph examinations, the State charged Crosby with three counts of theft and one count of forgery. Because the parties did not stipulate to having the polygraph results admitted into evidence at trial, Crosby moved to include expert testimony concerning the results. The trial court denied the motion, ruling (1) that polygraph tests were not sufficiently reliable, and (2) that because the test results were inconclusive, the evidence would not be helpful to the jury. Prior to trial, Crosby also moved to exclude expert testimony on handwriting, claiming that the State's expert, Detective Brent Hutchison, was not qualified to testify. The trial court denied this motion. Crosby was subsequently convicted on all four counts.

II. ADMISSION OF SCIENTIFIC EVIDENCE UNDER UTAH RULE OF EVIDENCE 702

In State v. Rimmasch, 775 P.2d 388 (Utah 1989), we interpreted Utah Rule of Evidence 702, which states:

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.

The issue in Rimmasch was whether our adoption of rule 702 altered the standard we established in Phillips v. Jackson, 615 P.2d 1228 (Utah 1980), for the admission of scientific evidence. In Phillips, we abandoned exclusive reliance on the "general acceptance" test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and adopted an "inherent reliability" standard. Phillips, 615 P.2d at 1234. In applying this standard, a trial court should conduct "[a]n analysis of the admissibility of scientific evidence, ... taking into account general scientific acceptance and widespread practical application, [but] must focus in all events on proof of inherent reliability." Id.

In Rimmasch, the State argued that under rule 702, all relevant expert testimony that might assist the trier of fact should be admitted and that any concerns about reliability should be left entirely to the finder of fact. 775 P.2d at 397. In rejecting this position, we noted that we had previously addressed this issue in Kofford v. Flora, 744 P.2d 1343 (Utah 1987), where "we made it clear that regardless of how rule 702 phrases the general test for the admissibility of expert testimony, our case law superimposes a more restrictive test whenever scientific evidence is at issue, and that a more restrictive test was set forth in Phillips." Rimmasch, 775 P.2d at 397. We then stated:

Casting the Phillips/Kofford standard in terms of the rubric of rule 702, it can be said that evidence not shown to be reliable cannot, as a matter of law, "assist the trier of fact to understand the evidence or to determine a fact in issue" and, therefore, is inadmissible.

Id. at 397-98 (quoting Utah R. Evid. 702).

Under the Phillips test as reiterated in Rimmasch, a court must conduct a three-step analysis to determine the admissibility of scientific evidence. Step one requires the court to determine whether the scientific principles and techniques underlying the expert's testimony are inherently reliable. See Rimmasch, 775 P.2d at 400. The court may do this by judicial notice if the scientific principles and techniques at issue have been generally recognized and accepted by the legal and scientific communities. Id.; see also Kofford, 744 P.2d at 1348 (holding that scientific principles and techniques underlying human leukocyte antigen (HLA) testing were accepted by legal and scientific communities for proving paternity and therefore proper grounds for judicial notice existed). If judicial notice is not appropriate, 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. See Rimmasch, 775 P.2d at 400.

If inherent reliability is demonstrated--whether by judicial notice or through a foundational showing--the court then moves to step two, which requires a determination that the scientific principles or techniques at issue have been properly applied to the facts of the particular case by sufficiently qualified experts. 2 Id. at 398 n. 7; see also Kofford, 744 P.2d at 1354, 1356. The burden is again on the party seeking admission of the scientific evidence to present a sufficient foundational showing. By the end of steps one and two, "the trial court should [have] carefully explore[d] each logical link in the chain that leads to the expert testimony given in court and determine[d] its reliability." Rimmasch, 775 P.2d at 403.

If the trial court determines that the scientific evidence meets the requirements of steps one and two, it must then, under step three, determine whether the proffered scientific evidence will be more probative than prejudicial as required by rule 403 of the Utah Rules of Evidence. Rimmasch, 775 P.2d at 398 n. 8. Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Utah R. Evid. 403. We stated in Rimmasch that where a court finds that the relevant scientific principles and techniques are inherently reliable and that they have been properly applied to the case at hand by a qualified expert, "the dangers of unfair prejudice, confusion of the issues, misleading the jury, etc., attendant to its introduction would have to be great indeed to preclude its admission." 775 P.2d at 398 n. 8.

Four years after we decided Rimmasch, the United States Supreme Court issued its opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which interprets the proper standard for admitting scientific evidence under Federal Rule of Evidence 702. 3 As stated, the court of appeals certified this case for a determination of whether the United States Supreme Court's interpretation of Federal Rule of Evidence 702 in Daubert was different from our interpretation of Utah Rule of Evidence 702 in Rimmasch and, if so, which standard should apply in Utah.

We asked the parties to submit supplemental briefs addressing this issue, and each concluded that the standards are, for the most part, similar. We agree. In Daubert, the Supreme Court acknowledged the "liberal thrust" of rule 702 but nevertheless refused to jettison the requirement of a threshold showing of reliability for expert scientific testimony, stating that "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. at 2795. The Court recognized that some scientific principles are so well-established that they are properly subject to judicial notice. Id. at 592 n. 11, 113 S.Ct. at 2796 n. 11. It also stated that where judicial notice is not appropriate, the proponent may make a foundational showing establishing the reliability of the expert's scientific testimony. Id. at 592-93, 113 S.Ct. at 2796-97. Finally, the Court stated that even if scientific evidence is shown to be reliable, its proponent must still demonstrate that the scientific techniques were properly applied in the case at hand and that the evidence is not inadmissible under Federal Rule of Evidence 403. Id. at 592 n. 10, 113 S.Ct. at 2796 n. 10. In short, the Supreme Court in Daubert suggested a three-step analysis for the admission of scientific evidence similar to the standard we established in Rimmasch.

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