State v. Salazar-Mercado

• Decision Date: 29 May 2014
• Docket Number: No. CR–13–0244–PR.,CR–13–0244–PR.
• Citation: 234 Ariz. 590,687 Ariz. Adv. Rep. 9,325 P.3d 996
• Parties: STATE of Arizona, Appellee, v. Martin David SALAZAR–MERCADO, Appellant.
• Court: Arizona Supreme Court

234 Ariz. 590

325 P.3d 996

687 Ariz. Adv. Rep. 9

STATE of Arizona, Appellee,

v.Martin David SALAZAR–MERCADO, Appellant.

No. CR–13–0244–PR.

Supreme Court of Arizona.

May 29, 2014.

Thomas C. Horne, Attorney General, Robert L. Ellman, Solicitor General, Joseph T. Maziarz, Section Chief Counsel, Jonathan Bass (argued), Assistant Attorney General, Criminal Appeals Section, Tucson, for State of Arizona.

Lori J. Lefferts, Pima County Public Defender, Lisa M. Hise, Assistant Public Defender, David J. Euchner (argued), Assistant Public Defender, Tucson, for Martin Salazar–Mercado.

Mikel Steinfeld and Amy Kalman, Phoenix, for Amicus Curiae Arizona Attorneys for Criminal Justice.

Justice TIMMER authored the opinion of the Court, in which Chief Justice BERCH, Vice Chief Justice BALES, Justice PELANDER, and Justice BRUTINEL joined.

Justice TIMMER, opinion of the Court.

¶ 1 In 2012, this Court amended Arizona Rule of Evidence 702, which governs the admissibility of expert testimony, to conform to its federal counterpart and follow Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We granted review to determine whether Rule 702 and Daubert bar admission of “cold” expert testimony that educates the fact-finder about general principles without considering the particular facts of the case. We hold that Rule 702 does not bar such testimony and the trial court did not abuse its discretion in admitting the challenged expert testimony in this case.

I. BACKGROUND

¶ 2 The State indicted Martin Salazar–Mercado on multiple counts of child molestation and sexual conduct with a minor under age fifteen for abusing his cousin's daughter and step-son. Salazar–Mercado moved before trial to preclude the State from eliciting expert testimony from Dr. Wendy Dutton, a forensic interviewer who holds a Ph.D. in justice studies, about Child Sexual Abuse Accommodation Syndrome (“CSAAS”), which purportedly explains behaviors commonly exhibited by child sexual abuse victims. He primarily argued that Dutton's testimony would not satisfy amended Rule 702(d) because she was both a “cold” expert, meaning she would only educate the jury about CSAAS, and a “blind” expert, meaning she had no knowledge about the victims in this case and would not offer any opinions specific to them. The trial court denied the motion, and Dutton testified at trial, explaining generally how children perceive sexual abuse, describing behaviors involving disclosure of abuse, and relating circumstances in which children may make false allegations. The jury found Salazar–Mercado guilty on all but two counts, and the court imposed sentences, the most severe of which was life in prison with eligibility for release in thirty-five years.

¶ 3 The court of appeals affirmed. State v. Salazar–Mercado, 232 Ariz. 256, 258 ¶ 1, 304 P.3d 543, 545 (App.2013). Pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24, we granted review of Salazar–Mercado's petition for review because it presents an issue of first impression and statewide importance.

II. DISCUSSION

A.

1.

¶ 4 We interpret court rules to effect the rule-makers' intent, using the same principles we apply when interpreting statutes. Chronis v. Steinle, 220 Ariz. 559, 560 ¶ 6, 208 P.3d 210, 211 (2009). If a rule's language is plain and unambiguous, we apply it as written without further analysis. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). But if the language is ambiguous, we apply secondary principles of construction, such as examining the rule's historical background, its spirit and purpose, and the effects and consequences of competing interpretations. Chronis, 220 Ariz. at 560 ¶ 6, 208 P.3d at 211. We review the interpretation of a court rule de novo. State v. Gutierrez, 229 Ariz. 573, 576 ¶ 19, 278 P.3d 1276, 1279 (2012) (citation omitted).

2.

¶ 5 We begin our analysis with the language of Rule 702:

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.

Subsection (d) is ambiguous because it can be reasonably read in two ways. See State v. Whitman, No. CR–13–0201–PR, 234 Ariz. 565, 565–66 ¶ 1, 324 P.3d 851, 851–52, 2014 WL 1385396, at *1 ¶ 7 (Ariz.Sup.Ct. Apr. 9, 2014). As Salazar–Mercado argues, it could mean that an expert must apply principles and methods to the particular facts of the case and do so reliably to testify as a witness. Or, as the State contends and the court of appeals and trial court found, it could mean that if the expert applies principles and methods to the facts of the case, the expert must do so reliably. Salazar–Mercado, 232 Ariz. at 261 ¶ 14, 304 P.3d at 548.

3.

¶ 6 Rule 702's historical background, along with the background and application of its federal counterpart, persuade us that Rule 702(d) applies only if the expert applies principles and methods to the particular facts of the case. We therefore agree with the court of appeals that the rule does not bar “cold” experts from offering general, educative testimony to help the trier of fact understand evidence or resolve fact issues.

¶ 7 This Court amended Rule 702 to conform to Federal Rule of Evidence 702, and the two rules are now identical. Ariz. R. Evid. 702, cmt. to 2012 amend.; Fed.R.Evid. 702; see State v. Miller, 234 Ariz. 31, 41 ¶ 29, 316 P.3d 1219, 1229 (2013). Consequently, the federal rule's background and its application by federal courts shed light on the meaning of Arizona's Rule 702(d). See State v. Green, 200 Ariz. 496, 498 ¶ 10, 29 P.3d 271, 273 (2001) (“When interpreting an evidentiary rule that predominantly echoes its federal counterpart, we often look to the latter for guidance.”) (citation omitted); Ariz. R. Evid., prefatory cmt. to 2012 amend. (“Where the language of an Arizona rule parallels that of a federal rule, federal court decisions interpreting the federal rule are persuasive but not binding with respect to interpreting the Arizona rule.”).

¶ 8 The Advisory Committee Notes to the federal rule state that the original version of Federal Rule 702 permitted the admission of “cold” testimony: “The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.” Fed.R.Evid. 702, Advisory Committee Notes, 1972 Proposed Rules; see also United States v. Bighead, 128 F.3d 1329, 1330–31 (9th Cir.1997) (in child sexual abuse case, upholding admission of generalized, “cold” expert testimony about “general behavioral characteristics” of child victims, such as “delayed disclosure” and “script memory”).

¶ 9 Federal Rule 702 was amended in 2000 to abandon the general-acceptance standard for admitting expert testimony established by Frye v. United States, 293 F. 1013 (D.C.Cir.1923), in favor of the reliability-assessment framework announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as clarified by Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Fed.R.Evid. 702, Advisory Committee Notes, 2000 amend. The amended rule imposes a “gatekeeper” obligation on trial judges to admit only relevant and reliable expert testimony. See Kumho, 526 U.S. at 147–48, 119 S.Ct. 1167. But the amendment did not “alter the venerable practice” of permitting experts “to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case.” Fed.R.Evid. 702, Advisory Committee Notes, 2000 amend. It follows, therefore, that subsection (d) does not preclude this type of “cold” testimony. Cf. id. (emphasizing the importance of reliable application “[i]f the expert purports to apply principles and methods to the facts of the case”).

¶ 10 Courts applying Federal Rule 702 since 2000 have permitted experts to provide general, educative testimony. See, e.g., United States ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 894–95 (D.C.Cir.2010); Estate of Gaither ex rel. Gaither v. District of Columbia, 831 F.Supp.2d 56, 73–74 & n. 21 (D.D.C.2011); TC Sys. Inc. v. Town of Colonie, 213 F.Supp.2d 171, 175 (N.D.N.Y.2002). We are not aware of any case holding that Federal Rule 702(d) bars such testimony, nor does Salazar–Mercado cite any. Moreover, the Advisory Committee Notes to Federal Rule 702 provide that “cold” testimony may be admitted if “(1) the expert [is] qualified; (2) the testimony address[es] a subject matter on which the factfinder can be assisted by an expert; (3) the testimony [is] reliable; and (4) the testimony ‘fit[s]’ the facts of the case.” Id. This “test” simply rephrases the requirements of Federal Rule 702(a)-(c) and does not require an expert to relate principles to the particular facts of the case or even to be aware of the facts.¹

¶ 11 We hold that Rule 702(d) does not bar admission of “cold” expert testimony. A court may admit such testimony if it satisfies Rule 702(a)-(c).

B.

1.

¶ 12 Salazar–Mercado argues that Dutton's testimony was inadmissible because it did not satisfy Rule 702(a)-(c). Although Salazar–Mercado does not contest Dutton's qualifications, he challenges the helpfulness and reliability of her testimony.

¶ 13 As the proponent of Dutton's testimony, the State bore the burden of establishing its admissibility under Rule 702 by a preponderance of the evidence. See State ex rel. Collins v. Seidel, 142 Ariz. 587, 590, 691 P.2d...