ER Doc May Testify on Bullet Trajectory, Says RI Supreme Court
This past Wednesday, the Rhode Island Supreme Court upheld the admission of testimony from an ER physician on a bullet's angle of entry. See State v. Stone, No. 2006-24-C.A. (R.I. June 20, 2007).
When lawyers and legal academics compile their little lists of states currently adhering to Daubert and Kumho Tire, Rhode Island is routinely included. That's eminently reasonable, for list-making purposes. The state's high court has made friendly noises, over the years, about both decisions.
Wednesday's decision in Stone, however, mentions neither. Rather, it summarizes Rhode Island law on expert testimony as follows:
The Stone opinion certainly need not be read that way. The trial objection in Stone focused on the expert's "experience in the penetration of skin with projectiles." Maybe the justices interpreted that objection as relating solely to qualifications and therefore saw no need to discuss other issues. Or maybe they saw qualifications and reliability as coming to pretty much the same thing, in the case at hand, because the testimony was on the "experience-based" end of the spectrum. Such a view of things would be consistent with the opinion's adoption of an alternative holding -- viz., that any error in admitting the testimony was harmless.
But we've gone and reread the earlier decisions, where the Rhode Island Supreme Court first dipped its toes into Daubert's waters, and the exercise has reminded us that those earlier decisions likewise stopped noticeably short of greeting the federal evidentiary standards with an enthusiastic bear hug. The court seems more to have sidled up to Daubert incrementally, in a series of cautious rhetorical steps. See, e.g., In re Odell, 672 A.2d 457, 459 (R. I. 1996) (state's rule barring polygraph evidence is "consistent with" Daubert); State v. Morel, 676 A.2d 1347, 1354-55 & n.2 (R. I. 1996) (state's existing relevance/appropriateness/helpfulness test is "consistent with" Daubert, whose "reasoning and guidelines" are "helpful and illuminating"); State v. Quattrocchi, 681 A.2d 879, 884 n.2 (R. I. 1996) (court's citation of Daubert "does not indicate that this court has abandoned the test enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), as analyzed in State v. Wheeler, 496 A.2d 1382, 1387-89 (R.I. 1985)"); Gallucci v. Humbyrd, 709 A.2d 1059, 1064 (R. I. 1998) (citing Daubert and Rhode Island's version of Rule 702 in connection with helpfulness to the trier of fact); DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 683-90 (R. I. 1999) (embracing Daubert in broad outline, and especially the concept of pretrial gatekeeping in appropriate cases, but stopping short of a clear and Sherman-like adoption of the federal standards for expert evidence in all their particulars) (dictum); Raimbeault v. Takeuchi Mfg. (U.S.), 772 A.2d 1056, 1060-62 (R.I. 2001) (stating that prior decisions have "recognized the applicability of Daubert to situations in which scientific testimony is proposed in Rhode Island state courts," and adding a "see also" citation to Kumho Tire, but ultimately gravitating to the state's pre-Daubert relevance/appropriateness/helpfulness vocabulary, citing DiPetrillo).
We don't want to read to much into a short passage from one opinion. But Stone does reignite some lingering uncertainty, in our minds, about whether the marriage between Rhode Island and Daubert has yet been fully consummated -- or, if it has, with what degree of lust.
When lawyers and legal academics compile their little lists of states currently adhering to Daubert and Kumho Tire, Rhode Island is routinely included. That's eminently reasonable, for list-making purposes. The state's high court has made friendly noises, over the years, about both decisions.
Wednesday's decision in Stone, however, mentions neither. Rather, it summarizes Rhode Island law on expert testimony as follows:
The admission of expert testimony in Rhode Island is governed by Rule 702 of the Rhode Island Rules of Evidence which provides that "[i]f 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 fact or opinion." The decision to permit a witness to testify as an expert is within the trial justice's sound discretion and rests upon such factors as the "witness's education, training, employment, or prior experiences." State v. Villani, 491 A.2d 976, 978-79 (R.I. 1985).We're not Rhode Island practitioners, and we have no idea what goes on in the trenches there. We wonder, though, whether this passage, with its focus on qualifications and its citation of only a pre-Daubert precedent from 1985, may signal some level of ambivalence about requiring elaborate reliability analyses for expert testimony as a general matter.
The Stone opinion certainly need not be read that way. The trial objection in Stone focused on the expert's "experience in the penetration of skin with projectiles." Maybe the justices interpreted that objection as relating solely to qualifications and therefore saw no need to discuss other issues. Or maybe they saw qualifications and reliability as coming to pretty much the same thing, in the case at hand, because the testimony was on the "experience-based" end of the spectrum. Such a view of things would be consistent with the opinion's adoption of an alternative holding -- viz., that any error in admitting the testimony was harmless.
But we've gone and reread the earlier decisions, where the Rhode Island Supreme Court first dipped its toes into Daubert's waters, and the exercise has reminded us that those earlier decisions likewise stopped noticeably short of greeting the federal evidentiary standards with an enthusiastic bear hug. The court seems more to have sidled up to Daubert incrementally, in a series of cautious rhetorical steps. See, e.g., In re Odell, 672 A.2d 457, 459 (R. I. 1996) (state's rule barring polygraph evidence is "consistent with" Daubert); State v. Morel, 676 A.2d 1347, 1354-55 & n.2 (R. I. 1996) (state's existing relevance/appropriateness/helpfulness test is "consistent with" Daubert, whose "reasoning and guidelines" are "helpful and illuminating"); State v. Quattrocchi, 681 A.2d 879, 884 n.2 (R. I. 1996) (court's citation of Daubert "does not indicate that this court has abandoned the test enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), as analyzed in State v. Wheeler, 496 A.2d 1382, 1387-89 (R.I. 1985)"); Gallucci v. Humbyrd, 709 A.2d 1059, 1064 (R. I. 1998) (citing Daubert and Rhode Island's version of Rule 702 in connection with helpfulness to the trier of fact); DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 683-90 (R. I. 1999) (embracing Daubert in broad outline, and especially the concept of pretrial gatekeeping in appropriate cases, but stopping short of a clear and Sherman-like adoption of the federal standards for expert evidence in all their particulars) (dictum); Raimbeault v. Takeuchi Mfg. (U.S.), 772 A.2d 1056, 1060-62 (R.I. 2001) (stating that prior decisions have "recognized the applicability of Daubert to situations in which scientific testimony is proposed in Rhode Island state courts," and adding a "see also" citation to Kumho Tire, but ultimately gravitating to the state's pre-Daubert relevance/appropriateness/helpfulness vocabulary, citing DiPetrillo).
We don't want to read to much into a short passage from one opinion. But Stone does reignite some lingering uncertainty, in our minds, about whether the marriage between Rhode Island and Daubert has yet been fully consummated -- or, if it has, with what degree of lust.
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