We Are Not a Daubert State–But What Are We? Scientific Evidence in North Carolina after Howerton

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Volume 6, Issue 2 (Jun 2012)

In June of 2004, the North Carolina Supreme Court decided Howerton v. Arai Helmet, Ltd., which interpreted the standard for admitting expert testimony under Rule 702 of the North Carolina Rules of Evidence. The issue before the court was whether a North Carolina trial court’s gatekeeping responsibility under Rule 702 is the same as that imposed on the federal courts by the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which requires an independent preliminary assessment of whether the proffered expert testimony is both reliable and relevant. The answer was an unequivocal “no.”

In concept, the admissibility of expert testimony boils down to a single question: How do you know that? Historically, there have been two approaches to this question: the guild approach and the independent scrutiny approach. Under the former (the so-called Frye5standard), experts are allowed to constitute themselves as a guild and declare that their approach is “generally accepted” among its members. The latter, or Daubert standard, requires the trial court to go past the affirmations of guild members and determine on its own whether the expert’s evidence is reliable.

John M. Conley & Scott W. Gaylord, We Are Not a Daubert State--But What Are We? Scientific Evidence in North Carolina after Howerton, 6 N.C. J.L. & Tech. 289 (2005), available at http://ncjolt.org/wp-content/uploads/2016/09/15_6NCJLTech2892004-2005.pdf.

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