Utah Bar Journal

I. Expert Testimony: Rimmasch and 702 Revisions.
A revised Rule of Evidence 7021 came into effect November 2007, which makes this an opportune moment to consider the state of Utah law on expert testimony. The key case interpreting the old Rule is, of course, State v. Rimmasch, 775 P.2d 388 (Utah 1989). In Rimmasch, the Utah Supreme Court set out a three-part test for the admissibility of “novel scientific evidence.”

First Rimmasch requires a threshold showing that the scientific principles and techniques are ‘inherently reliable.’ … Rimmasch’s second requirement is a determination that there is an adequate foundation for the proposed testimony, i.e., that the scientific principles or techniques have been properly applied to the facts of the particular case by qualified persons and that the testimony is founded on that work…. Finally, Rimmasch’s third requirement is a determination that the scientific evidence will be more probative than prejudicial as required by rule 403 of the Utah Rules of Evidence.

State v. Butterfield, 2001 UT 50, ¶¶ 29-30, 27 P.3d 1133 (internal quotation marks and citations omitted).

Accordingly, “the Rimmasch test was not intended to apply to all expert testimony. Rather, Rimmasch is implicated only when the expert testimony is ‘based on newly discovered principles.’” State v. Adams, 2000 UT 42, ¶ 16, 5 P.3d 642 (emphasis omitted).

Consequently, if the principles or techniques at issue did not involve novel science, but instead involve techniques or principles generally accepted by experts in the field, the proponent of the testimony is not required to make a particular reliability showing for admissibility.2 Indeed, under the old Utah model, it appeared that if an expert relied on techniques or principles that are of the type reasonably relied upon in the field, that was sufficient for admissibility.3

Haupt v. Heaps, 2005 UT App 436, 131 P.3d 252 demonstrates the difficulty of determining whether testimony is “scientific” and thus triggers the inherent reliability test. In Haupt the Utah Court of Appeals affirmed the trial court’s decision to exclude three expert witnesses. The plaintiff argued that the trial court erred in excluding three expert witnesses, two of whom planned to testify about the value of the stock on the date the former employee sold his stock back to the company. See id. ¶¶ 15-16, 28.

Dr. Paul Randle, an economist, planned to testify about the value of the stock using the “SLR Method,” which plots the known value of the stock on two different dates, and “draws a line between those two points and assumes that the value of the stock changed at a consistent rate between those two data points.” Id. ¶ 16. Dr. Randle admitted that he had never seen the SLR Method prior to his review of the company’s financial statements. In addition, he did not consider it to be a “valuation method,” id. ¶ 17, and he did not perform his own valuation of the stock. The trial court had ruled that under Rimmasch, Dr. Randle’s testimony was “novel scientific evidence” and must be shown to be inherently reliable. The trial court then found that the plaintiff could not meet this burden. The appellate court agreed that Dr. Randle’s testimony was “novel” but decided to “not resolve whether economic testimony is ‘scientific’ for purposes of Rimmasch.” Id. ¶ 24. Instead, the court affirmed on an alternative basis that the testimony would not assist the trier under Rule 702 because it was more prejudicial than probative.

Likewise, the court of appeals affirmed the exclusion of Curtis Bramble, a certified public accountant, who was to testify about the SLR Method as well as a valuation technique using the stock price at a later date. The court again sidestepped Rimmasch and excluded the testimony under Rule 702 as not helpful to the jury. See id. ¶ 28. The trial court had also excluded the proposed testimony of Professor William Albrecht who was to testify that “the facts of this case are consistent with typical elements of fraud” based on his theory of fraud triangles. Id. ¶ 31. The trial court had noted that no previous court had found Professor Albrecht qualified to testify about his theory and counsel could not locate a single case in which the “fraud triangles” theory had been accepted as a reliable scientific method. The trial court excluded the testimony under Rimmasch and Rule 702. The court of appeals was reluctant to decide whether the economic testimony was “scientific.” Instead, the court affirmed under Rule 702 because the testimony was not helpful and simply noted that it “was not an abuse of discretion to exclude that testimony.” Id. ¶ 33.

In contrast, in Balderas v. Starks, 2006 UT App 218, 138 P.3d 75, the Utah Court of Appeals affirmed the trial court’s decision to allow an expert witness on accident reconstruction. The defendant offered the testimony of an accident reconstructionist regarding “whether the forces generated in the accident could have caused the injuries claimed by Balderas.” Id. ¶ 5. The expert did not personally examine the cars, but instead relied on interviews with both parties about the accident, damage to the vehicles, a repair estimate for plaintiff’s vehicle, photographs of the vehicles, and literature about the vehicles. The expert then used a computer program called “PC Crash” to calculate momentum. Based on his analysis, the expert testified that there was “a low probability that anyone in the general population could have been injured in the accident.” Id. ¶ 9. On appeal, the plaintiff argued that the expert should not have been allowed to testify about impact speed, change in velocity, or the likelihood of injury because the testimony was inherently unreliable under Rimmasch since he had not personally examined the vehicles. The court of appeals held that Rimmasch did not apply because computer-modeled accident reconstruction did not involve novel scientific principles. Accordingly, the court found that the expert need only rely on materials reasonably relied upon by other experts in the field.

The amendments to Rule 702 eliminate this problem by generally adopting the Rimmasch standards, but eliminating a distinction between scientific and non-scientific testimony. Obviously, there are not yet cases interpreting the new Rule 702, only the Committee Notes. The notes suggest that Rimmasch is no longer good authority, and that the Utah Rule now more closely resembles the Federal Rule. It would be a mistake, however, to treat all of the cases under the old Rule 702 as vitiated.

In addition to Balderas, which likely remains good law, in Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, the Utah Court of Appeals affirmed the trial court’s decision to exclude a treating physician from giving expert testimony because he was not specifically identified as an expert by the plaintiff. See id. ¶ 36. The plaintiff identified a treating physician as a potential witness, but did not identify him as an expert. In response to the defendants’ motion for summary judgment, plaintiff offered an affidavit from the treating physician in which the physician opined about the standard of care. The trial court struck the affidavit and granted the defendants’ motion for summary judgment. The court of appeals held that the plaintiff was required to specifically identify the treating physician as an expert witness even if no report was required because the physician was not specially retained. The court rejected plaintiff’s argument that she had “substantially complied” with Rule 26(a)(3)(A) of the Utah Rules of Civil Procedure because the physician was named as a fact witness and his records had been provided to the defendants. The court noted that formally identifying an expert witness was necessary in order to allow the opposing party to properly conduct discovery and prepare for trial.4 See id. ¶ 17. The timely identification requirement has long been part of federal practice, and so Pete v. Youngblood is certainly still good law in Utah.

Similarly, the guidance of State v. Rothlisberger, 2004 UT App 226, 95 P.3d 1193, will remain vital. In Rothlisberger a police officer involved in arresting the defendant and investigating drugs in the car testified at trial to the amount of methamphetamine that would typify personal use for a charge of possession with intent to distribute. The defense objected to the officer’s testimony on the grounds that it constituted expert evidence and the state failed to give pretrial notice of its intent to present the officer as an expert at trial.

The Utah Court of Appeals and the Utah Supreme Court both ruled that while the officer in Rothlisberger was a fact witness, he presented expert evidence when he testified to the amount of methamphetamine that would typify personal use. That testimony was based on specialized knowledge implicating Rule 702. Consequently, the state was required to qualify the officer as an expert witness, and it was required to give expert notice under the Utah rules.

Finally, we should note an area the courts are just beginning to come to grips with, and it is a puzzle common to both the Utah and Federal Rules. The problem of how to deal with changes in the relevant scientific standards, raised in State v. Hales, 2007 UT 14, 152 P.3d 321, is perplexing. In Hales the defendant was charged with the murder of a boy named Luther. In December 1985, Luther’s mother left the 5-month-old infant in Mr. Hales’s care while she went to the grocery store for half an hour. During that time, Mr. Hales “noticed that Luther was gasping for air and that his eyes had rolled back in his head.” Id. ¶ 7. Mr. Hales tried to revive Luther, and when his efforts failed, he ran for help and called 911. Luther was taken to a hospital where technicians performed CT scans. “ Doctors determined that Luther had brain swelling and retinal hemorrhaging and that his injuries were likely nonaccidental and caused by shaken baby syndrome.” Id. ¶ 10. Luther remained in a vegetative state until he died in 1997. At that point, the Utah Attorney General’s Office investigated the matter and in 2000 charged Mr. Hales with murder. The case went to trial in 2003.

The State’s case relied in large part on an expert’s interpretation of the CT scans that were performed in 1985 and thereafter. The state’s expert, Dr. Walker, testified that the scans and retinal hemorrhaging supported nonaccidental, violent force, shaken baby syndrome. According to Dr. Walker, the injuries “would have caused immediate unconsciousness with no possibility of a ‘lucid interval.’” Id. ¶ 28.

The defense, on the other hand, relied on Mr. Hales’s testimony of the events, and an expert qualified in shaken baby syndrome. Notably, the defense did not review the CT scans before trial, and the defense expert was not qualified to interpret CT scans. Thus, Dr. Walker’s testimony for the state went largely un-rebutted. At the conclusion of the evidence, the jury convicted Mr. Hales of murder. Mr. Hales then acquired new counsel, filed a motion for a new trial, hired an expert to interpret the CT scans, and appealed.

According to Mr. Hales’s new defense team, the original trial attorneys were deficient because they failed to properly investigate the CT scans. In addition, the new expert claimed that Dr. Walker’s testimony was flawed and unfounded: nothing in the scans revealed the cause or the timing of Luther’s injuries. In fact, the scans showed a change in brain cell structure that may have been initiated some six to twelve hours earlier. Based on that post-trial testimony and the timing of the scans, the evidence supported that Luther had a lucid period between the initiating event causing injury to the brain and unconsciousness. If believed, the evidence would establish that the insult to Luther’s brain “most likely happened” several hours “prior to the time” that Luther was in Mr. Hales’s care on the evening of December 5, 1985. Id. ¶ 31 (emphasis added).

The Utah Supreme Court agreed that the original trial attorneys were deficient in their investigation of the CT scans. It reversed Mr. Hales’s conviction and remanded the case for a new trial. According to newspaper reports, the state has since taken a fresh look at the evidence and has decided “there [is] not enough there to successfully prosecute” Mr. Hales in a new trial. Linda Thomson, Judge Dismisses ‘Shaken-baby’ Case, Deseret Morning News, June 16, 2007, at B01. The evidence is “insufficient” to proceed. Stephen Hunt, New Evidence Frees Inmate in Murder Case, The Salt Lake Tribune, June 16, 2007.

That assessment appears to coincide with updated information now available on shaken baby syndrome. While Dr. Walker relied on a constellation of symptoms that experts have looked to for decades to support nonaccidental, violent force injury and abuse,5 there are new reports on the issue. Within the past couple of years, studies have demonstrated that the symptoms Dr. Walker identified for shaken baby syndrome are indicative of other nonviolent events. The symptoms may be the residual effects of trauma during birth in a newborn infant, a reaction to a vaccine, or the result of an infection, a respiratory paralysis, trauma to the head hours earlier with a lucid period of up to 24 hours, or other diseases or disorders. See id.

In Hales the Utah Supreme Court declined to address whether Dr. Walker’s expert testimony was unfounded and improperly admitted at trial. Indeed, according to the literature, the theories that Dr. Walker relied on for his testimony had been generally accepted as reliable in the medical field for many years. But what we may have here is a paradigm shift in the field. Courts in other states are dealing with the issue and applying a reliability assessment to reject expert evidence concerning the “classic signs” for shaken baby syndrome.6

What happens if traditional, generally accepted methods and principles are later questioned as unreliable in a particular expert field? Should we expect the jury to sort through the evidence in a battle of the experts in a murder trial? Or should the courts require the proponent of the evidence to establish that the traditional methods are reliable as a threshold for admissibility?

Under Rimmasch, the problem could not arise as a question of law. Because the old science could not, by definition, be “novel,” the expert testimony would be admissible under the old Rule 702, at least presumptively. Whether the Hales scenario remains problematic under the new Rule 702 is unclear. The new Rule directs attention to factors which might give some guidance, assuming Rimmasch really has suffered a mortal wound. But notice that, to the extent that the new Rule 702 provides guidance, it is limited. It does not dispose of the Hales scenario. The problem perhaps lies outside the Rules of Evidence. Rimmasch yielded absurd answers to the Hales scenario, while the new Rule provides tools to at least manage the problem.

II. Utah Constitutional Interpretation: Which Way Forward?
The preceding remarks presume a stable interpretive structure. That seems a reasonably safe bet for interpretation of the Rules, although not a certainty. To see why it is not a certainty, consider the recent history of the Utah Supreme Court’s directions on interpretation of the state constitution.

For over twenty years, the Utah Supreme Court has pressed litigants to raise constitutional issues under our state constitution, particularly in criminal cases, encouraging parties briefing state constitutional issues to use a variety of sources, including historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials. See, e.g., Soc’y of Separationists v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993). But two years ago, the supreme court expressly adopted an originalist approach to state constitutional interpretation in American Bush v. South Salt Lake, 2006 UT 40, 140 P.3d 1235. Then, last year, without acknowledging or citing American Bush, the court issued an opinion applying an entirely different approach to state constitutional analysis in State v. Tiedemann, 2007 UT 49, 162 P.3d 1106.

At issue in Society of Separationists was whether permitting prayer before city council meetings violated article I, section 4, of the Utah Constitution, which prohibited “public money or property” from being “appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.” Society of Separationists, 870 P.2 at 919 (quoting Utah Const. art. I, § 4. The Court held that it did not.

The result reached in Society of Separationists was not as important as what the Court said about how article I, section 4 should be interpreted. The city argued that the article’s language had to be examined in light of its history and textual context. See id. at 920. The Society of Separationists, on the other hand, advanced a purely textual analysis, arguing that “any resort to history is inappropriate” and that “it is entirely proper to examine the constitutional language alone.” Id.

The court rejected the city’s “apparent contention that the language of the Utah Constitution is not the proper starting place for analysis and can be ignored.” Id. It also rejected the Society’s claim that the provision “should be limited to [its] literal meaning.” Id. at 921. Rather, the court held, the language of article I, section 4 must be read in its entirety in light of “other [constitutional] provisions dealing with the general topic of freedom of religion and conscience” and “the unique history of church-state relations in Utah – relations that occupied center stage in our state’s social and political history for the almost fifty years preceding adoption of the 1896 constitution.” Id.

The opinion suggested that historical evidence of the framer’s intent was critical to interpreting the state constitution. The court, however, stopped short of saying that this was the only source for determining the meaning of a constitutional provision. Rather, it suggested that sister state law and policy arguments would also be appropriate considerations:

We have encouraged parties briefing state constitutional issues to use historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials to assist us in arriving at a proper interpretation of the provision in question. Each of these types of evidence can help in divining the intent and purpose of the framers, a critical aspect of any constitutional interpretation.

Id. at 921 n.6. (citations omitted). Thus, Society of Separationists stands for the proposition that the aim of state constitutional analysis is to divine “the intent and purpose of the framers,” and that this is best done by reading the constitutional text in light of its history.

Issued thirteen years later, American Bush7 stated expressly what Society of Separationists only implied – that sister state law and policy arguments are relevant in state constitutional analysis only to the extent that they assist in discerning the framers’ intent. Justice Parrish, writing for a three-justice majority, adopted an interpretative framework for the Utah Constitution that can only be described as originalist in its approach. She wrote that interpreting Utah’s constitution requires an analysis of “its text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.” Am. Bush v. S. Salt Lake, 2006 UT 40, ¶ 12, 140 P.3d 1235. This much is largely consistent with Society of Separationists, 870 P.2d at 921 n.6, and other prior caselaw interpreting the state constitution.

The American Bush court explained, however, that the goal of construing a state constitutional provision is “to discern [not only] the intent and purpose of…the drafters of our constitution,” but “more importantly,” to discern the intent and purpose of “the citizens who voted it into effect.” American Bush, 2006 UT 40, ¶ 12. American Bush expressly and “intentionally excluded the consideration of policy arguments suggested by Society of Separationists v. Whitehead….” Id. ¶ 12 n.3. The supreme court elaborated: “As is the case with statutory interpretation, [the court’s] duty is not to judge the wisdom of the people of Utah in granting or withholding constitutional protections but, rather, is confined to accurately discerning their intent.” Id. Thus, “[p]olicy arguments are relevant only to the extent they bear upon the discernment of that intent.” Id. In other words, under American Bush, our state constitutional guarantees are those which the framers and citizenry intended them to be in 1895, unless the provision has been amended.

Constitutional textual interpretation must therefore be informed “with historical evidence of the framers’ intent,” id. ¶10, which may include “the common law, our state’s particular…traditions, and the intent of our constitution’s drafters.” Id. ¶ 11 (omission in original) (citation omitted). It may also include “court decisions made contemporaneously to the framing of Utah’s constitution in sister states with similar…constitutional provisions.” Id. (emphasis added). Finally, because the Utah Constitution was “adopted…against the background of over a century of experience under the United States Constitution,” it is also appropriate to consider the history of the adoption of a corresponding federal provision. Id. (omission in original) (citation omitted). The majority opinion leaves no doubt that it intended to adopt a constitutional interpretative framework that aimed to divine the intent of the framers and ratifiers by looking primarily, if not exclusively, at historical evidence.

Justice Durrant wrote a concurring opinion explaining why the originalist approach adopted by the majority was, in his view, the best approach. The question, according to Justice Durrant, was where judges “should look for guidance when assessing the meaning of that text.” Id. ¶ 73 (Durrant, J., concurring). Justice Durrant saw three possible approaches for interpreting constitutional text:

(1) we can assign meaning to the text based on the attitudes and views of contemporary society (the “contemporary-context approach”); (2) we can assign meaning to the text based on our own individual attitudes and views (the “subjective approach”); or (3) we can assess the meaning of the text based on the understanding and intent of those who drafted and ratified the constitution (the “historical approach”).

Id. ¶ 73 (Durrant, J., concurring).

Justice Durrant noted that all three approaches ask the same question – “what does the provision mean?” – but that they did so from very different perspectives. Id. ¶ 74. The contemporary-context approach asks “what should the provision mean in the context of our modern values and attitudes?” Id. The subjective approach asks “what should the provision mean according to the interpreting judge’s own personal values and attitudes?” Id. The historical approach asks “what did this provision mean to those who drafted and ratified it?” Id. Under the latter approach, “the judicial enterprise is anchored to the text of the constitution as understood and intended by its framers and the voters who ratified it.” Id. ¶ 83. He advocated for the historical approach, as adopted by the majority, because, under it, “judges are more referees than players in the grand political game.” Id. ¶ 84. This, Justice Durrant believed, would provide “stability to state government while remaining true to the principle that it is the people of this state who should ultimately determine how our society should be structured.” Id.

Chief Justice Durham dissented. She saw the issue as interpreting the “plain language” of the state constitution of article I, section 1, which gives Utah citizens the “inherent and inalienable right…to communicate freely their thoughts and opinions, being responsible for the abuse of that right.” Id. ¶ 114 (Durham, C.J., dissenting). Thus, in Chief Justice Durham’s view, the issue was simply whether nude dancing falls within the meaning of “communicate.” In concluding that nude dancing is “communicative in nature,” id. ¶ 117, the chief justice relied primarily on a modern understanding of the term “communicate” and on the history of dancing as traced back to its ancient roots. Id. ¶¶ 117-18. While the chief justice did rely on some history, she faulted the majority for relying too much on it: “I believe that the point of relying on history and the common law in interpreting our constitution is to inform our result, not dictate it.” Id. ¶ 133.

Although American Bush does not expressly state that parties must brief state constitutional issues using the historical approach, its express adoption of that interpretative framework suggests that parties wishing to be successful should use that formula. Certainly, under American Bush’s holding, parties should, at a minimum, address the state constitutional text in light of its history, so as to show the framers’ and ratifiers’ intent.

About eleven months after American Bush, the Utah Supreme Court decided State v. Worwood, 2007 UT 47, 164 P.3d 397, a Fourth Amendment appeal brought by a party who did not properly preserve a separate state constitutional claim under our state search provision. The supreme court did not address the merits of the state constitutional claim, but pointedly instructed counsel on how to raise and brief state constitutional claims in search and seizure cases. “As with most legal arguments,” the court stated, “there is no magic formula for an adequate state constitutional analysis. Arguments based, for example, on historical context, the constitution’s text, public policy, or persuasive authority would all meet our briefing requirements.” Id. ¶ 18.

Worwood’s suggestion that “there is no magic formula” for adequately briefing state constitutional claims does not fit comfortably into American Bush’s originalist interpretive model. For example, Worwood’s invitation to brief “public policy or persuasive authority,” id. seems at odds with American Bush’s rejection of “policy arguments,” except as they may “bear upon the discernment of [the ratifiers’ intent].” Am. Bush v. S. Salt Lake, 2006 UT 40, ¶ 12 n.3, 140 P.3d 1235. The court did not address this apparent contradiction; and Worwood does not cite to American Bush, even though Justice Parrish authored both opinions. Worwood’s apparent abandonment of American Bush’s originalist model might have been explained away as mere dicta, but for the issuance of State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, a week later.

Tiedemann, charged with three counts of aggravated murder, argued that the destruction of physical evidence by the police violated the due process clauses of both the federal and state constitutions. To prevail under federal law, Tiedemann had to show that the police acted in bad faith in destroying the evidence. Tiedemann argued that the supreme court should adopt a different test under the state constitution.

The state responded that Tiedemann had not adequately developed his state constitutional argument using “historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials to assist [the court] in arriving at a proper interpretation of the provision in question” Id. ¶ 32 (alteration in original) (citation omitted). The state noted that while Tiedemann had cited to sister state law, he had not analyzed his claim within “the unique context in which Utah’s constitution developed.” Id. (citation omitted).

Consistent with her dissent in American Bush, Chief Justice Durham, now writing for the majority, rejected any suggestion that “there is a formula of some kind for adequate framing and briefing of state constitutional issues before district courts and this court.” Id. ¶ 37. The court noted that it had “on numerous occasions cited with favor the traditional methods of constitutional analysis.” Id. It also noted that while “[h]istorical arguments may be persuasive in some cases,…they do not represent a sine qua non in constitutional analysis.” Id. “In theory,” the court continued, “a claimant could rely on nothing more than plain language to make an argument for a construction of a Utah provision that would be different from the interpretation the federal courts have given similar language.” Id. The court concluded that independent state analysis “must begin with the constitutional text and rely on whatever assistance legitimate sources may provide in the interpretive process.” Id.

Yet, Justices Parrish and Durrant concur in this portion of the Chief Justice’s opinion. Tiedemann’s language on this point does not appear to be dicta. After explaining the appropriate approach to state constitutional analysis, Tiedemann adopts a new state constitutional due process rule for when evidence has been destroyed in a criminal case. In so doing, Tiedemann neither begins with the text nor cites any historical evidence on what the framers or ratifiers intended. Indeed, Tiedemann does not quote the constitutional text. The Tiedemann majority instead informs its constitutional analysis by reference to a rule of criminal procedure, and by noting that several states have adopted different rules under their own state constitutions. Thus, Chief Justice Durham’s opinion appears to dismantle the originalist analytical framework erected by Justices Parrish and Durrant in American Bush.

The approaches used by American Bush and Tiedemann appear to be irreconcilable. Both Worwood and Tiedemann suggest that practitioners need not follow American Bush’s interpretative framework in briefing state constitutional issues. But since neither case cites American Bush, that may be a risky proposition. Until the Utah Supreme Court adopts a single interpretive model, the safest course for practitioners would be to begin with the constitutional text and to use and rely on historical evidence as much as possible in interpreting the text. While Tiedemann suggests that historical evidence is not the “sine qua non” of state constitutional analysis, it does not reject historical evidence as a legitimate source for interpreting constitutional text. Practitioners may then bolster their historical analysis with reference to policy arguments, economic and social studies, and the law of other states.

1. The pre-November Rule 702 read: “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.” Utah R. Evid. 702 (2005).

The post-November Rule 702 reads:

(a) Subject to the limitations in subsection (b), 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.

(b) Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony if the scientific, technical, or other principles or methods underlying the testimony meet a threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case.

(c) The threshold showing required by subparagraph (b) is satisfied if the principles or methods on which such knowledge is based, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community.

Utah R. Evid. 702 (amended effective November 1, 2007).

2. In State v. Kelley, 2000 UT 41, 1 P.3d 546, the Utah Supreme Court stated that if expert testimony is not based on novel scientific principles or techniques, “[t]he appropriate
standard [for admissibility] is set forth in State v. Clayton, 646 P.2d 723 (Utah 1982).” Kelley, 2000 UT 41, ¶20. Under the Clayton standard, an expert must be qualified. Thereafter, the qualified expert may base an opinion on “reports or writings or observations not in evidence which were made or compiled by others, so long as they are of a type reasonably relied upon by experts in that particular field.” Clayton, 646 P.2d at 726.

3. In Kofford v. Flora, 744 P.2d 1343 (Utah 1987), the Utah Supreme Court ruled that once the reliability of a scientific principle has been demonstrated, “judicial notice of that fact may be taken, and hereafter foundational evidence as to the validity of the basic principles may be dispensed with in this jurisdiction in the future. As we wrote in [Phillips v. Jackson, 615 P.2d 1228 (Utah 1980)], ‘General acceptance in the scientific community…assures the validity of the basic principle.” Kofford, 744 P.2d at 1348 (omission in original) (quoting Phillips, 615 P.2d at 1233). Also, the Utah Supreme Court has stated that once a technique has reached general acceptance, the party opposing the evidence may challenge its reliability on cross-examination, “but such challenge goes to the weight to be given the testimony, not to its admissibility.” Clayton, 646 P.2d at 726.

4. It is important to note that the court of appeals reversed the summary judgment on the basis that the doctrine of res ipsa loquitur applied and no expert testimony was necessary. Pete v. Youngblood, 2006 UT App 303, ¶ 36, 141 P.3d 629.

5. See Harold E. Buttram, M.D., Shaken Baby/Impact Syndrome: Flawed Concepts and Misdiagnoses (Based on a Review of Twenty-Two Cases), (2002), http://www.woodmed.com/Shaken%20Baby%20Web%202002.htm (stating that for 30 years, a diagnosis for shaken baby syndrome has relied on a combination of subdural hematoma, retinal hemorrhage, and diffuse axonal injury).

6. More than ten years ago, a forensic pathologist in Wisconsin presented expert testimony of shaken baby syndrome to support a murder conviction against Audrey Edmunds. Edmunds was the last person with the child before the onset of the symptoms, and at the time of trial, “[t]he common wisdom in such ‘shaken-baby’ cases was that the last person with the child…was the guilty party.” Allen G. Breed, Sitter Hoping Latest Research Will Get Her a New Trial, The Salt Lake Tribune, April 29, 2007. Edmunds is now serving an 18-year prison sentence. Today, that same forensic pathologist states he does not know what caused the child’s head injury: “I’d say she died of a head injury, and I don’t know when it happened. There’s room for reasonable doubt.” Id. In other states, courts are rejecting expert testimony founded on the “common wisdom” that has prevailed for years in shaken-baby cases. Id.

7. The American Bush v. South Salt Lake, 2006 UT 40, 140 P.3d 135, case grew out of a South Salt Lake City ordinance banning nude dancing in sexually oriented businesses. American Bush and other such businesses challenged the ordinance as violating article I, section 15 – Utah’s freedom of speech provision. A majority of the court held that the provision did not protect nude dancing.