State v. Crosby

927 P.2d 638, 302 Utah Adv. Rep. 36, 1996 Utah LEXIS 93, 1996 WL 625298
CourtUtah Supreme Court
DecidedOctober 29, 1996
Docket950453
StatusPublished
Cited by68 cases

This text of 927 P.2d 638 (State v. Crosby) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Crosby, 927 P.2d 638, 302 Utah Adv. Rep. 36, 1996 Utah LEXIS 93, 1996 WL 625298 (Utah 1996).

Opinion

DURHAM, Justice:

The Utah Court of Appeals transferred this ease for a determination of whether Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), states a different standard for admitting evidence pursuant to Federal Rule of Evidence 702 than we articulated for admission of evidence under Utah Rule of Evidence 702 in State v. Rimmasch, 775 P.2d 388 (Utah 1989), and if so, whether the Daubert standard should be adopted as the governing rule in Utah. Along with this certified question, this case presents three issues on appeal: (1) whether, given our determination of the certified question, the trial court properly excluded polygraph evidence under Utah Rule of Evidence 702, (2) whether the trial court properly admitted expert handwriting evidence under Utah Rule of Evidence 702, and (3) whether trial counsel rendered ineffective assistance by not object- *640 mg timely to the information charging defendant with three counts of theft.

I. BACKGROUND

Defendant Gertrude Crosby was employed as a bookkeeping clerk for Sign Services. Linda Townsend, the company’s owner, alleged that between November of 1991 and June of 1992, Crosby misappropriated company funds for her personal use. Prior to charging Crosby, the prosecutor requested that Crosby and Townsend submit to polygraph examinations. Both agreed, and Sergeant Steve Bartlett, a state-licensed polygraph examiner, administered the tests. After reviewing the test results, Sergeant Bartlett scored Crosby a +7, concluding that she had been truthful in denying allegations of misappropriation of company funds. He then scored Townsend a -4, stating that it was inconclusive whether she had been truthful or deceptive. 1 The State then asked a second polygraph expert, Gale McCurdy, to examine the test results. He scored Crosby a +4 and Townsend a -5, stating that he considered the results of both tests to be inconclusive.

Despite the inconelusiveness of the polygraph examinations, the State charged Crosby with three counts of theft and one count of forgery. Because the parties did not stipulate to having the polygraph results admitted into evidence at trial, Crosby moved to include expert testimony concerning the results. The trial court denied the motion, ruling (1) that polygraph tests were not sufficiently rehable, and (2) that because the test results were inconclusive, the evidence would not be helpful to the jury. Prior to trial, Crosby also moved to exclude expert testimony on handwriting, claiming that the State’s expert, Detective Brent Hutchison, was not qualified to testify. The trial court denied this motion. Crosby was subsequently convicted on all four counts.

II. ADMISSION OF SCIENTIFIC EVIDENCE UNDER UTAH RULE OF EVIDENCE 702

In State v. Rimmasch, 775 P.2d 388 (Utah 1989), we interpreted Utah Rule of Evidence 702, which states:

If 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 an opinion or otherwise.

The issue in Rimmasch was whether our adoption of rule 702 altered the standard we established in Phillips v. Jackson, 615 P.2d 1228 (Utah 1980), for the admission of scientific evidence. In Phillips, we abandoned exclusive reliance on the “general acceptance” test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and adopted an “inherent reliability” standard. Phillips, 615 P.2d at 1234. In applying this standard, a trial court should conduct “[a]n analysis of the admissibility of scientific evidence, ... taking into account general scientific acceptance and widespread practical application, [but] must focus in all events on proof of inherent reliability.” Id.

In Rimmasch, the State argued that under rule 702, all relevant expert testimony that might assist the trier of fact should be admitted and that any concerns about reliability should be left entirely to the finder of fact. 775 P.2d at 397. In rejecting this position, we noted that we had previously addressed this issue in Kofford v. Flora, 744 P.2d 1343 (Utah 1987), where “we made it clear that regardless of how rule 702 phrases the general test for the admissibility of expert testimony, our case law superimposes a more restrictive test whenever scientific evidence is at issue, and that a more restrictive test was set forth in Phillips.” Rimmasch, 775 P.2d at 397. We then stated:

Casting the Phillips/Kofford standard in terms of the rubric of rule 702, it can be said that evidence not shown to be rehable cannot, as a matter of law, “assist the trier of fact to understand the evidence or to determine a fact in issue” and, therefore, is inadmissible.

Id. at 397-98 (quoting Utah R. Evid. 702).

Under the Phillips test as reiterated in Rimmasch, a court must conduct a *641 three-step analysis to determine the admissibility of scientific evidence. Step one requires the court to determine whether the scientific principles and techniques underlying the expert’s testimony are inherently reliable. See Rimmasch, 775 P.2d at 400. The court may do this by judicial notice if the scientific principles and techniques at issue have been generally recognized and accepted by the legal and scientific communities. Id.; see also Kofford, 744 P.2d at 1348 (holding that scientific principles and techniques underlying human leukocyte antigen (HLA) testing were accepted by legal and scientific communities for proving paternity and therefore proper grounds for judicial notice existed). If judicial notice is not appropriate, the court must determine whether the party seeking to have the evidence admitted has sufficiently demonstrated the inherent reliability of the underlying principles and techniques. See Rimmasch, 775 P.2d at 400.

If inherent reliability is demonstrated — whether by judicial notice or through a foundational showing — the court then moves to step two, which requires a determination that the scientific principles or techniques at issue have been properly applied to the facts of the particular ease by sufficiently qualified experts. 2 Id. at 398 n. 7; see also Kofford, 744 P.2d at 1354, 1356. The burden is again on the party seeking admission of the scientific evidence to present a sufficient foundational showing.

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Bluebook (online)
927 P.2d 638, 302 Utah Adv. Rep. 36, 1996 Utah LEXIS 93, 1996 WL 625298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crosby-utah-1996.