Expert Testimony in North Carolina: Then and Now
The recent overhaul of Rule 702 of the North Carolina Rules of Evidence has the potential to lead to a flurry of appeals.
Expert testimony can make or break a case. Bolstered by an expert witness, a claim can survive many challenges. Without it, a case is much more vulnerable. In North Carolina, the admissibility of such testimony is governed by Rule 702 of the state’s Rules of Evidence. The rule was amended in 2011 (PDF) and it remains unclear how the changes will affect previously decided cases.
Prior to 2011, North Carolina had a more relaxed standard of admissibility than that of the federal courts and many states in the nation. North Carolina followed a three-step inquiry announced in State v. Goode, and more recently, in Howerton v. Arai Helmet, Ltd. This standard required courts to determine the reliability of the method of proof, the witness’s qualifications as an expert in the particular area of testimony, and the relevance of the expert’s testimony to the case.
Under the Howerton standard, an expert witness was admitted to testify based on their knowledge, skill, experience, or training. Notably, however, North Carolina courts did not distinguish between expert witness credentials earned through formal training and education versus those gained through actual, practical experience in the field. Without such a distinction, testimony from “expert witnesses” of widely varying backgrounds and credentials was admissible.
In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court held that expert witness testimony should be limited to scientific knowledge that will assist the trier of fact in understanding or determining a fact in issue.
While good lawyering allowed for most anyone to be deemed an expert under North Carolina’s relaxed standard, the federal courts and many states’ courts followed a stricter test of admissibility. In 1993, the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals. In that case, the Court held that expert witness testimony should be limited to scientific knowledge that will assist the trier of fact in understanding or determining a fact in issue.
In 2000, Congress amended Federal Evidence Rule 702 to more closely align with the standards set forth in Daubert. Eleven years later, Congress further amended the rule to expand the knowledge requirement to include scientific and all specialized knowledge.
North Carolina’s approach differed from the federal courts’, until the General Assembly passed the Tort Reform for Citizens and Businesses Act of 2011 (“the Act”). The Act included an amendment that changed the state’s treatment of expert witness testimony to more closely align with the federal approach and the Daubert standard.
Since the change, only one case has addressed the new rule: State v. McGrady, a 2014 North Carolina Court of Appeals case. The Court of Appeals held that the new standard requires a trial court to determine whether: (1) an expert is testifying to scientific or any specialized knowledge, and (2) the knowledge will assist the trier of fact in understanding or determining a fact in issue. An expert may not testify to matters of common knowledge. The McGrady Court’s holding evinces that there are now more hurdles to overcome in order to establish admissibility of expert testimony, thanks to the amended Rule 702. On June 24, 2014, the Supreme Court of North Carolina granted certiorari to hear the case and have the final say on this matter.
How might this change affect cases decided under North Carolina’s pre-2011 relaxed standard of admissibility? Might those convicted under the old rule have a basis for appeal? Such a consideration ultimately rests on the Ex Post Facto Clause to the United States Constitution, which prohibits laws that retroactively punish individuals for actions that were legal when they were committed.
When a rule of evidence is changed to permit or require different evidence than that which was required or permitted when an offense was committed, such previous decisions are not appealable on the basis of the recent change to that particular evidence rule.
A discussion of Ex Post Facto Clause jurisprudence necessarily begins with Calder v. Bull, a 1798 United States Supreme Court case. In his seriatim opinion, Justice Chase set forth four laws prohibited by the Ex Post Facto Clause. Relevant to the issue at hand regarding the ex post facto considerations to the North Carolina Evidence Rule change, that list included a law that changed a rule of evidence of the state. When a rule of evidence is changed to allow for different or new testimony than that testimony which was required or permitted when the offender committed the offense, cases previously decided cannot be appealed on the basis of the change to such a rule of evidence.
Over the years, however, the Supreme Court has consistently held that a new rule of evidence allowing for different testimony than was previously admissible falls outside of Calder’s protections because such a change is procedural, rather than substantive, in nature. In 1884, the Court held in Hopt v. Utah that a law governing witness competency did not fall under the Calder categories because it related to modes of procedure. In the 1898 Thompson v. Missouri decision, the Court stated that only certain circumstances, such as the application of an evidence rule that infringes upon an offender’s essential rights, could establish grounds for a violation of the Ex Post Facto Clause. More recently, in its 1990 decision of Collins v. Youngblood, the Court mentioned in a footnote that Beazell v. Ohio established that a change in evidence rules or the application of new evidence rules were not within the Calder categories.
Despite these previous findings, the 2000 Supreme Court case Carmell v. Texas rejuvenated Justice Chase’s original Ex Post Facto Clause jurisprudence. The Court held that the Calder decision established the exclusive definitions of ex post facto law prohibitions and that the fourth category prohibiting changes to evidentiary rules that would convict an offender remains controlling law. This means that when a rule of evidence is changed to permit or require different evidence than that which was required or permitted when an offense was committed, such previous decisions are not appealable on the basis of the recent change to that particular evidence rule.
Overall, it does not appear that the change to North Carolina Evidence Rule 702 will allow for appeals of pre-2011 convictions based in part on expert witness testimony. North Carolina courts will continue to interpret the state’s new rule and in doing so, could decide to allow for appeals based on the change. However, it is also unlikely that the United States Supreme Court would uphold such an appeal. Regardless of whether the rule is challenged on ex post facto grounds, future cases will allow for further discussion and analysis of North Carolina’s new, stricter standard of admissibility for expert witness testimony.