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SCRE 702: Daubert/Council Hearing

"You can never out-expert the expert"


Expert testimony in federal court is governed by Federal Rule of Evidence 702. This rule states:

The United States Supreme Court has held that when applying FRE 702, federal trial courts should follow the Daubert standard:

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 2790, 125 L. Ed. 2d 469 (1993)

In South Carolina state courts, expert testimony is governed by South Carolina Rule of Evidence 702. This rule states:

The South Carolina Supreme Court has held that when applying SCRE 702, trial courts should follow the Council standard:

State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999)

As you can see from above, the standards are very similar. Judge Hill of the South Carolina Court of Appeals has explained that the two standards are "extraordinarily similar:"

State v. Warner, No. 2017-001313, 2020 WL 1696716, at *3 (S.C. Ct. App. Apr. 8, 2020)

And that leads us to the most recent development of expert testimony in state court, State v. Phillips. In this recent South Carolina Supreme Court case, Justice Few discussed the testimony of an expert witness in regards to DNA evidence. First, Justice Few explained how DNA can be very straightforward and helpful to jury; but he also pointed out, and this case made the point, that there are three other types of DNA evidence that can be confusing and thus must be very careful letting in:

(These types of DNA will go into a 403 balancing test quite heavily).

In a nutshell, the case was overturned because the State did not properly lay the foundation for the expert DNA testimony per SCRE 702 and the procedures set forth in Council.

While Daubert and Council have different factors, they both have the same procedure for laying a proper foundation using a pretrial hearing:

So while the name Daubert/Council invokes two separate bundle of factors, the name is actually used to describe the pretrial hearing, not the actual factors considered.

This is how I envision a Daubert/Council hearing in South Carolina state courts:

And notice one thing too: the proponent of the expert testimony has the burden of showing that the probative value is not substantially outweighed by the prejudicial effect. Under normal 403 analysis, the burden remains with the opponent.

***This is not legal advice***


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