Ten Years Later: NC Catches Up With Rule 702, Adopts Daubert and Bids Adieu to Howerton

by Womble Bond Dickinson
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In January, the North Carolina Court of Appeals decided State v. McGrady, in which it finally addressed the impact of the 2011 amendments to Rule 702.  McGrady confirmed what many practitioners have believed for two and a half years — that North Carolina State Courts must now adhere to and apply Daubert standards to expert witnesses and opinion testimony. 

McGrady was convicted of shooting and killing his cousin.  On appeal he argued that his expert’s testimony regarding the doctrine of “use of force” was wrongfully excluded.  The expert testified and opined that McGrady’s cousin exhibited a number of physiological and circumstantial “pre-attack cues” that were “consistent with exhibition by an individual that an attack was likely imminent,” prompting McGrady to shoot him.  He also testified that the rounds were fired in “somewhere around 1.8 seconds.”   The scientific basis for his opinions came from published articles on use of force and the training he received “by some of those authors and studies that I have myself been involved in.”    He claimed that this information is regularly relied on by people in the field of use of force, but he did not know its “potential rate of error.”  He also had no medical degree or medical education.

The trial court found that: (1) the expert’s opinions were based on medical knowledge that he was not qualified to discuss; (2) his testimony was not helpful to the jury; (3)  he was not competent to testify about reaction times; (4) his testimony was not based on sufficient facts or data; (5) his testimony was not the product of reliable principles or methods; (6) his methods had not been subject to peer review; and (7) his opinions were based on speculation.  The Court of Appeals affirmed the exclusion of the expert testimony, and discussed the October 2011 changes to NC Rule of Evidence 702(a).  Noting that the rule was amended to include additional criteria for the admission of expert testimony (“the testimony is based upon sufficient facts or data[;] the testimony is the product of reliable principles and methods[; and] the witness has applied the principles and methods reliably to the facts of the case”), the Court confirmed that the amendment replaces the expert witness standard from Howerton v. Arai Helmet with the U.S. Supreme Court’s decision in Daubert.  The Court further noted that the trial judge should serve as a gatekeeper and determine whether expert testimony is based on the scientific method, whether the techniques or methods have been subjected to peer review and publication, the known or potential rate of error, the existence and maintenance of standards controlling the technique’s operation, and whether the theory or technique is generally accepted as reliable in the relevant scientific community. The Court concluded that the trial court employed the appropriate standard in evaluating the expert’s testimony, and did not abuse its discretion by excluding it.

So, for the many who believed that Howerton’s anti-“mechanistic” approach served as an unfortunate detour on the road of evidentiary jurisprudence, it would seem that a course correction has occurred.  Following the General Assembly’s lead, the Court of Appeals has officially adopted Daubert and embarked on a new direction that adds both a new phase to many cases and new gatekeeping obligations to Superior Court Judges.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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