Utah

Utah (last Shepardized on 9/25/04)

Utah state law decisions are currently monitored for this site by John H. Bogart, a partner at the highly regarded Salt Lake City law firm Bendinger, Crockett, Peterson, Greenwood & Casey, P.C. He offers the following thumbnail sketch of Utah law on expert evidence:

The Utah Rules are modeled on the Federal Rules of Civil Procedure. Expert disclosure is governed by Rule 26(a)(3), which largely duplicates the Federal Rule. The Utah Supreme Court has adopted the Daubert standards for testing expert testimony, with a couple of significant differences. Dickeou v. Osborn, 881 P.2d 943, 946 n.5 (Utah Ct. App. 1994). First, under Utah law, a party may prepare and sign the expert’s report. The Utah Courts have not yet addressed how a party drafting and signing an expert report can be squared with the adoption of Daubert analysis. Second, under Utah law, there is a three-part test applicable to “novel” theories or methods. State v. Rimmasch, 775 P.2d 388 (Utah 1989). There are a number of cases suggesting that the Rimmasch test (which is essentially a Daubert / Rule 703 reliability test) should be applied to all scientific expert testimony. Brewer v. Denver & Rio Grande Western R.R., 31 P.3d 557, 563 (Utah 2001).

As a practical matter, Utah law is fairly close to federal law on the standards applicable to expert testimony under Rule 702. State courts are not under an obligation to issue detailed rulings on Rule 702 motions, unlike their federal counterparts in the Tenth Circuit. The result is that hearings on Rule 702 motions are uncommon.

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Utah Court of Appeals

State v. Quintana, 2004 UT App. 418 (Utah Ct. App. Nov. 12, 2004). Prosecution offers fingerprint identification evidence in burglary trial. Jury convicts and defendant appeals. Admissibility affirmed. Defendant protests that fingerprint evidence does not rest on reliable empirical support. But fingerprint identification testimony is not novel scientific evidence, and so it was admissible without any need for threshold reliability test. Fingerprint identification techniques have been tested through the adversary system and are generally accepted. Concurrence: Agreed that evidence was admissible, but "trial courts should be directed to instruct juries about the existing weaknesses of fingerprint examiner training and identification protocol."

Gallegos v. Dick Simon Trucking, Inc., 2004 UT App. 322 (Utah Ct. App. Sept. 23, 2004). Defendant in personal injury action offers testimony on cost of annuity as evidence of present value of damages for future medical expenses. Plaintiffs move to exclude testimony as misleading, arguing that cost of annuity would not accurately reflect present value because future medical expenses are difficult to predict and may arise suddenly. Trial court sustains objection, and jury awards $12 million. Exclusion reversed. Because trial court's ruling turned on legal considerations, review is for correctness. Evidence on cost of annuity would be helpful to jury, which would find it impossible to compute present value without some form of assistance. Plaintiffs' arguments that cost of annuity understates actual present value can be weighed by trier of fact. Error was not harmless. Remanded for new trial on damage issues.

State v. Rothlisberger, 95 P.3d 1193 (Utah Ct. App. 2004). Defendant is charged with possession of controlled substance for distribution. At trial, police chief testifies that in his experience, quantity of methamphetamine found in defendant's possession is not typically associated with mere personal use. Defendant objects that police chief's opinion constitutes expert testimony and should be excluded because prosecution failed to disclose it. Trial court admits testimony as lay opinion and jury convicts. Admissibility reversed. Police chief's testimony inherently relied on specialized knowledge beyond realm of common experience, and trial court therefore abused its discretion by admitting it as lay opinion. "[W]hen a witness seeks to testify regarding matters that are necessarily based on that witness’s 'scientific, technical, or specialized knowledge,' that witness must be qualified as an expert under Rule 702.” Defendant did not waive objection to nondisclosure by failing to request continuance to address "surprise" expert testimony, because trial court had already ruled (albeit erroneously) that police chief's testimony was not expert testimony at all, but lay opinion. Nor did similar testimony by another police officer at preliminary hearing discharge prosecution's disclosure obligation, because police chief himself did not personally testify at that hearing, and defendant was entitled to disclosures that would permit witness-specific preparation. Reversed and remanded for new trial.

Utah