By Barry Miller, Esq.
The Kentucky Evidence Rules Study Committee began meeting in the 1980’s and its work formed the basis of the Kentucky Rules of Evidence (KRE), adopted in 1992. Professor Robert G. Lawson, the commission’s chairman from 1987 until 1992, has been the preeminent authority on Kentucky evidence law for decades. When an evidentiary question arises, a Kentucky judge will want to know: (1) Whether the Supreme Court of Kentucky spoken on the issue; (2) If not, has the Court of Appeals; and (3) What does Lawson say? Some judges will skip the first two steps. Anyone faced with a Daubert issue in a Kentucky court should consult § 6.20 of Professor Lawson’s Kentucky Evidence Law Handbook.
Sitting with Professor Lawson on the Review Commission was Judge William S. Cooper, then a trial judge in Hardin County, Kentucky, but since 1996 an Associate Justice of the state Supreme Court. Since 1995, Justice Cooper has served on the Kentucky Evidence Rules Review Commission, and has headed that commission since 2000.
In 1992, Professor Lawson, Justice Cooper, and Professor William H. Fortune, another highly regarded member of the Evidence Rules Study Committee, published a monograph Kentucky Rules of Evidence. That monograph is now in its second edition and is available from the University of Kentucky College of Law, Office of Continuing Legal Education. In addition to the text of the rules, the monograph contains the study committee’s Commentary. Because its authors include the Kentucky evidence guru, and a sitting Justice of the Kentucky Supreme Court, the Commentary can be persuasive authority.
Another excellent resource is the Kentucky Evidence 2003 Courtroom Manual by Professor Richard Underwood. Unlike Professor Lawson’s book, the Manual’s arrangement conforms to the KRE, making it easier to locate case notes dealing with a particular rule.
Rules Regarding Expert Testimony
KRE 702 (Testimony by experts) states:
KRE 702 is identical to Fed. R. Evid. 702 up to the word “opinion.” Sharp-eyed federal practitioners will notice that the Kentucky rule omits the language following “opinion” in the federal rule: “. . . if (1) the testimony is based upon sufficient facts or date, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods of reliability to the facts of the case.” The Kentucky Rules of Evidence (2d ed.) monograph states: “KRE 702 is substantially identical to Federal Rule of Evidence 702, but the federal rule conditions such testimony on three factors.” To date, the difference between KRE 702 and Fed. R. Evid. 702 has not been cited as a reason not to follow a federal case on any point regarding expert testimony. The monograph’s Commentary to KRE 702 also notes that “in every essential respect [it] is identical to the law which has existed in Kentucky for many years."
KRE 703 also adopts the federal language -- to a point:
(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(b) If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to subdivision (a) may at the discretion of the court be disclosed to the jury even though such facts or data are not admissible in evidence. Upon request the court shall admonish the jury to use such facts or data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference.
(c) Nothing in this rule is intended to limit the right of an opposing party to cross-examine an expert witness or to test the basis of an expert's opinion or inference.
Fed. R. Evid. 703 has no counterpart to sections (b) and (c) of the Kentucky rule. The Kentucky Rules of Evidence Commentary states that these subdivisions “are not at odds with the way in which federal courts deal with facts and date underneath opinion testimony by experts.” It notes that their addition was intended to clarify that the trial judge should actively police an expert’s direct testimony—a clarification that anticipates Daubert and is in the same spirit as the gatekeeping function Daubert defines for trial courts.
Daubert’s Adoption in Kentucky
Mitchell v. Comm., 908 S.W.2d 100 (Ky. 1995). The Supreme Court adopted Daubert in this case. Mitchell appealed his conviction on multiple counts of rape, sodomy, kidnapping, and burglary. One appellate issue involved the use of forensic DNA evidence, with Mitchell arguing that the analysis the prosecution employed was not accepted within the general scientific community. Reviewing Daubert, the Court summarized:
[P]ursuant to KRE 702 and Daubert, scientific evidence must be proffered to a trial court. The trial court judge must conduct a preliminary hearing on the matter utilizing the standards set forth in Daubert. On appeal, the standard of review is whether in deciding the admissibility of the evidence the trial judge abused his or her discretion.
Mitchell was overruled on other grounds by Fugate v. Comm., 993 S.W.2d 931 (Ky. 1999).
Johnson v. Comm., 12 S.W.3d 258 (Ky. 1999). Daubert does not require a hearing on scientific evidence and theories so reliable that a trial court may take judicial notice of them. Here the trial court took notice of the reliability of microscopic hair analysis. It held that the lack of probability statistics regarding hair characteristics went to the weight of the evidence, not admissibility. In a recent unpublished case, Grundy v. Comm., 2002-SC-0921-MR (Feb. 19, 2004), the Supreme Court took the same view of DNA testing. The defendant challenged his second-degree rape conviction, which was based in part on fetal-tissue DNA identifying him as the father. He argued there was no settled protocol for establishing the paternity of fetal tissue, and that the probability calculations were therefore flawed. The Court again noted that this was a challenge to the weight of the evidence, not its admissibility, and cited earlier cases holding that paternity tests were admissible in criminal trials.
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000). The trial court held that a witness with a bachelor’s degree in engineering physics, a master’s and doctorate in mechanical engineering, and a masters in nuclear physics was not qualified to state two opinions: (1) that a tire rim had been defectively designed, and (2) that the manufacturer had adequately warned the plaintiff of the dangers of changing tires with multi-piece rims. The Court of Appeals overruled, holding that Daubert and Mitchell applied only to scientific evidence. The Supreme Court abated oral argument awaiting the opinion in Kumho Tire Corporation v. Carmichael. The Court ultimately adopted Kumho’s reasoning, holding that the Daubert test applies to all expert testimony based on scientific, technical, or “other specialized” knowledge. It approved Kumho’s holding that the trial court could consider one or more Daubert factors, but that the test of admissibility is flexible -- not all the Daubert factors could apply to “all experts or in every case.” Finally, it reaffirmed Mitchell’s holding that Daubert determinations would be reviewed for abuse of discretion.