North Dakota Supreme Court Declines Invitation to Adopt Daubert

From our North Dakota correspondent Leonard Bucklin, we learn that the state's highest court issued a ruling yesterday declining to adopt Daubert by judicial decision. From the opinion:

[¶5] [Appellant] Hernandez argues the trial court erred in permitting a licensed private investigator to testify as a handwriting expert without properly exercising the gatekeeping functions required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Hernandez claims this Court must follow the Daubert and Kumho Tire decisions. Hernandez also argues the private investigator lacked the qualifications, proficiency, and scientific methodology to analyze the writing in the Spanish letter, and the court erred in allowing him to testify that Hernandez wrote the letter.

[¶6] This Court has never explicitly adopted Daubert and Kumho Tire. See Howe v. Microsoft Corp., 2003 ND 12, ¶ 27 n.1, 656 N.W.2d 285. Contrary to Hernandez's assertion, this Court is not required to follow Daubert and Kumho Tire, which involved admissibility of expert testimony in federal courts under the federal rules of evidence. This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez's invitation to adopt Daubert by judicial decision. See State v. Osier, 1997 ND 170, ¶ 5 n.1, 569 N.W.2d 441 (refusing to adopt procedural rule by opinion in litigated appeal).

See State v. Hernandez, 2005 ND 214 (Dec. 20, 2005).