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Expert Opinion: Daubert, Council, and 702

The admission of expert testimony follows an extremely similar standard in both federal court and state court in South Carolina.[1] Federal courts follow the Daubert[2]standard and FRE 702, and state courts follow the Council[3] standard and SCRE 702. A recent South Carolina Supreme Court case[4] described the procedure for qualifying an expert witness as a Daubert/Council hearing (Daubert/Council describes the pretrial hearing procedure and not the actual factors considered. Even though the factors are similar, a trial court should use the Council factors as described below.).

When expert testimony is offered, the trial court should look to SCRE 702, 403, and Council. The proponent of the expert has the burden of each of these factors, including passing the 403 test.[5]

1. Evidence will assist the trier of the fact.

2. The expert must be qualified in that particular field.

3. The underlying science is reliable.

a. Scientific in nature:

i. (1) the publications and peer review of the technique;

ii. (2) prior application of the method to the type of evidence involved in the case;

iii. (3) the quality control procedures used to ensure reliability; and

iv. (4) the consistency of the method with recognized scientific laws and procedures.

b. Nonscientific in nature:

i. No set test. Judge must still play gatekeeper though.[6]

4. Passes SCRE 403.

[1]State v. Warner, 430 S.C. 76 (Ct. App. 2020) (“Nevertheless, our approach is ‘extraordinarily similar’ to the federal test.”). [2] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). [3] State v. Council, 335 S.C. 1 (1999). [4] State v. Phillips, 430 S.C. 319 (2020). [5] State v. Phillips, 430 S.C. at 335 (“In addition, when the opponent makes a Rule 403 objection, the proponent must demonstrate the probative value of the evidence.”). But see State v. King, 424 S.C. 188 (2018) (“The test described in Wallace incorrectly places the burden on the proponent of the evidence to establish admissibility, while the proper test places the burden on the opponent of the evidence to establish inadmissibility.”). [6] See State v. Prather, 429 S.C. 583 (2020).