Alaska

General background on Alaska’s law of expert evidence can be found at the Harvard Judicial Gatekeeping Project, but the discussion there may be somewhat dated, having been written in early 1999, just a few weeks after the Alaska Supreme Court first announced its adoption of Daubert in State v. Coon, 974 P.2d 386 (Alaska 1999). Since that time, Alaska's version of Daubert has proven significantly more lenient, in practice, than the version prevailing in the federal courts. The Alaska Legal Resource Center provides an up-to-date topical index of evidentiary decisions from the state’s highest court, with links to the opinions. It also posts the Alaska Rules of Evidence and commentary. Selected decisions are summarized below.

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Alaska Supreme Court

Samaniego v. City of Kodiak, 80 P.3d 216 (Alaska 2003). Arrestee sues city for using excessive force in arrest. Trial court permits city's psychiatrist, Dr. Stephen M. Raffle, to testify re his diagnosis of plaintiff. Jury returns verdict for city. Admissibility affirmed. Trial court did not abuse discretion in taking judicial notice of testimony's admissibility without conducting evidentiary hearing. "Psychiatric testimony need not be subjected to analysis under the Coon factors when the testimony is simply a diagnosis stemming from a typical psychiatric examination."

John's Heating Serv. v. Lamb, 46 P.3d 1024 (Alaska 2002). Homeowners claim their neurological symptoms are attributable to carbon monoxide exposures caused by heating service's failure to repair their furnace properly. Without conducting gatekeeping hearing, trial court overrules heating service's objections to causation testimony from homeowners' medical experts. Trial court also instructs jury not to consider testimony from heating service's experts on standard of care. Jury awards damages to homeowners. Admissibility affirmed; exclusion reversed. Court will assume, without deciding, that Coon applies, because parties themselves assume it does. As was noted in Coon, its adoption of Daubert should rarely lead to exclusion of evidence that would have been admissible under Frye. Net effect of Coon should be to admit more expert testimony. Turning to heating service's specific substantive arguments re homeowners' experts: (1) experts possessed sufficient basis in literature to extrapolate from high-exposure studies to chronic low level exposures, even though no specific exposure threshold at which carbon monoxide becomes harmful was demonstrated; (2) differential diagnosis is widely accepted as one method for ascribing causation, and experts here performed their differential diagnosis soundly; and (3) homeowners did not need to prove exposure directly through ambient air measurements, where circumstantial evidence, including defective condition of furnace, was offered. Meanwhile, heating service cannot complain that trial court failed to conduct evidentiary hearing, because heating service did not request one, and because no hearing was required here, since experts' scientific methodology and evidentiary foundations were not in significant question. Trial court did abuse its discretion in barring jury's consideration of testimony from defendants' standard-of-care experts; experts need not have experience in every detail of problem at issue, so long as they possess sufficient specialized knowledge to testify helpfully for jury. But this error was harmless.

Linden, Inc. v. Walker, 30 P.3d 609 (Alaska 2001). Injured while unloading pipe sections from truck, worker sues company that loaded truck unsafely. Trial court admits testimony from worker's expert in human factors and industrial engineering, Michael Burleson, who opines that company failed to provide adequately safe packaging, thereby causing worker's injuries. Jury returns verdict for plaintiff. Admissibility affirmed. Defendant complains that expert conducted no experiments and had inadequate expertise concerning loading heavy items on trucks under conditions like those prevailing on Alaska's North Slope. But expert had sufficient qualifications, and his failure to perform experiments went to weight, not admissibility. No abuse of discretion.

L.C.H. v. T.S., 28 P.3d 915 (Alaska 2001). Nineteen-year-old sues her grandfather for molesting her on various occasions when she was between three and fourteen years old. Grandfather moves to exclude granddaughter's testimony on the theory that it constitutes "recovered memory," but trial court denies motion because granddaughter says her testimony is founded not on "recovered" memory but on persistent memories of events within her personal knowledge. Trial court also denies grandfather's motion to exclude "profile" testimony from granddaughter's expert on childhood sexual abuse, psychologist Dr. Nancy Fleisher. Jury finds for granddaughter. Admissibility affirmed. Trial court did not abuse discretion in admitting granddaughter's testimony without first conducting reliability inquiry. Her testimony established its foundation in her personal knowledge, and any risk of prejudice from distorted memory did not outweigh testimony's helpfulness to trier of fact. Case was brought relatively soon after occurrence of alleged abuse, and grandfather was free to challenge granddaughter's credibility before jury. Nor did trial court err in admitting expert's "profile" testimony to rebut grandfather's contention that granddaughter's behavior was inconsistent with her claims of abuse. Grandfather contests its scientific reliability, but Daubert / Coon analysis is not applicable to this testimony, which was founded in expert's training and experience and her clinical observations. Alaska Supreme Court has previously held that expert testimony about child abuse victims is generally accepted, and trial court therefore could have taken judicial notice of its admissibility. Court need not decide how far Coon extends -- e.g., whether it applies to scientific techniques or theories that are not novel -- because parties have not raised that issue.

State v. Coon, 974 P.2d 386 (Alaska 1999). Defendant leaves terroristic threats on former daughter-in-law’s answering machine. Prosecution offers testimony from Steve Cain, expert in spectrographic voice analysis, who opines that voice on answering machine belongs to defendant. Trial court admits testimony after conducting Frye hearing, and jury convicts. Intermediate appellate court remands for more detailed findings under Frye, but Alaska Supreme Court grants petition for review and remands instead for alternative findings by trial court under both Frye and Daubert. Trial court rules on remand that evidence is admissible under either test, whereupon Supreme Court (having retained jurisdiction) invites briefing by parties and various amici curiae on whether to retain Frye or adopt Daubert. Admissibility affirmed. It was held in Contreras v. State, 718 P.2d 129 (Alaska 1986), that Federal Rules of Evidence did not supersede Frye, and, by implication, that Alaska’s adoption of parallel evidentiary rules did not supplant Frye either. However, in light of Supreme Court's subsequent ruling in Daubert, and for reasons of policy, Contreras is overruled, and Daubert adopted. This does not violate defendant’s rights under the ex post facto clause. Trial court’s findings that expert testimony satisfied Daubert will be reviewed for abuse of discretion. Trial court legitimately found that voice spectrograph identification has survived empirical testing, has been subjected to peer review in published literature, has error rate of less than one percent, and is generally accepted in forensic community (subject to some dispute) when properly performed by qualified analyst. State’s expert was well qualified by education and experience. No abuse of discretion.

Alaska