Rules of Evidence

Tennessee Rules of Evidence are available online at http://www.tsc.state.tn.us/

 Rule 702. Testimony by experts. If scientific, technical, or other specialized knowledge will substantially 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 in the form of an opinion or otherwise.

 Advisory Commission Comments 2001. The Frye test no longer exists in Tennessee. In McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (1997), the Tennessee Supreme Court listed five nonexclusive factors taken from the federal case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993):
““(1) whether scientific evidence has been tested and the methodology with which it has been tested;
““(2) whether the evidence has been subjected to peer review or publication;
““(3) whether a potential rate of error is known;
““(4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and
““(5) whether the expert’’s research in the field has been conducted independent of litigation.”

 Advisory Commission Comments. Tennessee common law requires a preliminary finding of necessity. Casone v. State, 193 Tenn. 303, 246 S.W.2d 22 (1952), cert. denied, 343 U.S. 969. The rule merely requires a finding that expert knowledge will ““substantially assist””the jury. This is a question for the court under proposed Rule 104(a).

 Rule 703. Bases of opinion testimony by experts.  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. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

 Advisory Commission Comments. Experts in the field may base opinions on facts not in evidence under this rule. Requisite foundations are that (1) the facts must be ““reasonably relied upon by experts in the particular field””and (2) the facts must be trustworthy. With such foundations, inadmissible hearsay could support an admissible expert opinion.

New Jersey Zinc Co. v. Cole, 532 S.W.2d 246 (Tenn. 1975), allows a treating doctor to base an opinion on reports of other professionals.

If the bases of expert testimony are not independently admissible, the trial judge should either prohibit the jury from hearing the foundation testimony or should deliver a cautionary instruction. Unfairly prejudicial facts or data should be dealt with under Rule 403. With respect to cross-examination, see Rule 705.

An expert's presence in the courtroom is governed by Rule 615(3). For example, if a lawyer wishes to have an expert witness give an opinion based on trial testimony, permission must be obtained under Rule 615(3).

 Rule 704. Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

 Advisory Commission Comments. The Supreme Court has already approved this language. City of Columbia v. C.F.W. Construction Co., 557 S.W.2d 734 (Tenn. 1977). But Blackburn v. Murphy, 737 S.W.2d 529 (Tenn. 1987), places limitations on lay witnesses testifying to some ultimate issues, such as whether an accident was unavoidable.

 Advisory Commission Comments [1996]. ““One ultimate issue is outside the scope of expert testimony. T.C.A. §§ 39-11-501 provides that "no expert witness may testify as to whether the defendant was or was not insane.' ?””

 Rule 705. Disclosure of facts or data underlying expert opinion.  The expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

 Advisory Commission Comments. This rule gives a lawyer the option of not using a hypothetical question in examining an expert; the lawyer can ask the expert simply to state an opinion. Tennessee presently requires the hypothetical unless the expert bases testimony on personal observation. See, e.g., Valentine v. Conchemco, 588 S.W.2d 871 (Tenn. Ct. App. 1979).

 Rule 403.  Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

 Advisory Commission Comments. The Tennessee Supreme Court approved this rule for both civil and criminal cases in State v. Banks, 564 S.W.2d 947 (Tenn. 1978).

 Tennessee Cases

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.1997)

 Science in question: occupational physicians, relying upon epidemiological studies, to testify that long-term, low dosage exposure to chemical solvents has caused a form of brain damage known as toxic encephalopathy

Result: evidence admissible

 “In general, questions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court.  State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993).   The trial court's ruling in this regard may only be overturned if the discretion is arbitrarily exercised or abused.  Id.”  955 S.W.2d at 263-4

 “In our view, determining the standard for the admissibility of scientific evidence requires an analysis of the unique language found in Rules 702 and 703 of the Tennessee Rules of Evidence.   For instance, Tenn. R. Evid. 702 requires that the scientific evidence "substantially assist the trier of fact," while its federal counterpart requires only that the evidence "assist the trier of fact."  Fed.R.Evid. 702.   This distinction indicates that the probative force of the testimony must be stronger before it is admitted in Tennessee.”  Id. at 264.

 “Similarly, Tenn. R. Evid. 703 states that "[t]he court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness."  There is no similar restriction in the federal rule.  Fed.R.Evid. 703.   Thus, as one writer has observed, "the additional language ... [in the Tennessee rule] is obviously designed to encourage trial courts to take a more active role in evaluating the reasonableness of the expert's reliance upon the particular basis for his or her testimony."   R. Banks, Some Comparisons Between the New Tennessee Rules of Evidence and the Federal Rules of Evidence, Part II, 20 Mem.S.U. L.Rev. 499, 559 (1990).   In sum, even though the facts and data need not be admissible, they must be reviewed and found to be trustworthy by the trial court.” Id. at 265.

 “Although we do not expressly adopt Daubert, the non-exclusive list of factors to determine reliability are useful in applying our Rules 702 and 703.   A Tennessee trial court may consider in determining reliability:   (1) whether scientific evidence has been tested and the methodology with which it has been tested;  (2) whether the evidence has been subjected to peer review or publication;  (3) whether a potential rate of error is known;  (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community;  and (5) whether the expert's research in the field has been conducted independent of litigation.”  Id.

 State v. Begley, 956 S.W.2d 471 (Tenn. 1997) 

Science in question: PCR (polymerase chain reaction) DNA analysis 

Result: evidence admissible w/out hearing  

“Questions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court, whose ruling will not be overturned in the absence of abuse or arbitrary exercise of discretion. Ballard, 855 S.W.2d at 562.  In McDaniel, we promulgated the principles for the trial court's guidance in deciding whether to admit scientific or technical evidence.”  956 S.W.2d at 475. 

“First, the evidence must be relevant to a fact at issue in the case.  Tenn. R. Evid. 401, 402.   Second, the expert must be qualified by specialized knowledge, skill, experience, training, or education in the field of expertise, and the testimony in question must substantially assist the trier of fact to understand the evidence or determine a fact in issue.  Tenn. R. Evid. 702;  McDaniel, at 264;  see also Otis v. Cambridge Mutual Fire Ins. Co., 850 S.W.2d 439, 443 (Tenn.1992).   Finally, when the expert witness offers an opinion or states an inference, the underlying facts or data upon which the expert relied must be trustworthy.  Tenn. R. Evid. 703; McDaniel, at 264.”  Id.

 “Simply put, scientific or technical evidence will not be admissible unless it is determined to be reliable.   The reliability of scientific evidence is determined by considering the following nonexclusive list of factors:

1.  Whether the scientific evidence has been tested and the methodology with which it has been tested;

2.  Whether the evidence has been subjected to peer review or publication;

3.  Whether a potential rate of error is known;

4.  Whether, as formerly required by Frye the evidence is generally accepted in the scientific community;  and

5.  Whether the expert's research in the field has been conducted independent of litigation.”  Id. (citing McDaniel).

 “The Legislature has determined that DNA analysis is a trustworthy and reliable method of identifying characteristics in an individual's genetic material and will be admissible so long as it otherwise meets the requirements of the Tennessee Rules of Evidence.  Tenn.Code Ann. § 24-7-117(b)(1) (Supp.1991). The Legislature evidently enacted this statute in order to ease the admission of DNA evidence in Tennessee.   Neil P. Cohen, et al., Tennessee Law of Evidence § 401.34, at 147 (3d ed.1995).”  Id. at 476.

 “Hereafter, the PCR method of DNA analysis shall be admissible into evidence without antecedent expert testimony as to its trustworthiness and reliability, pursuant to Tenn.Code Ann. § 24-7-117(b)(1).”  Id. at 478.

 State v. Scott, 33 S.W.3d 746 (Tenn. 2000)

 Science in question: mitochondrial DNA testing

 Result: evidence admissible w/out hearing

 “[W]here the general reliability of scientific evidence is not contested or is not otherwise an issue in the case, the need to hold a McDaniel hearing does not arise.  33 S.W.2d at 757.

 “Based upon our own examination of the record, we conclude that the trial court did not err in admitting evidence of mtDNA analysis without first holding a pretrial hearing to establish its general reliability as a method of identification.   The evidence of mtDNA analysis was clearly relevant as the evidence tended to make more probable the fact that the appellant was the perpetrator of the crime.  See Tenn.R.Evid. 401.  In addition, the witness proffering the evidence was qualified and accepted by the court as an expert with ‘knowledge, skill, experience, training, or education’ in this field, see Tenn.R.Evid. 702, and the expert's specialized knowledge no doubt substantially assisted the jury in determining the identity of the perpetrator, id.; see also Begley, 956 S.W.2d at 477.   Accordingly, we find that the evidence of mtDNA analysis met the general standards under the Rules of Evidence concerning the admission of scientific or technical evidence.   Furthermore, because the mtDNA evidence is statutorily deemed to be reliable, the trial court did not err in failing to hold a McDaniel hearing.   Cf. Begley, 956 S.W.2d at 477.” Id. at 759.

 Coe v. State, 17 S.W.3d 193 (Tenn. 2000)

 Science in question: testimony by a psychiatrist that Mr. Coe was malingering, based on psychological tests -- specifically the MCMI3, the SIRS, the MMPI and the MMPI-2

 Result: evidence admissible

 “The appellant suggests that the appropriate standard for determining the admissibility of scientific expert proof was defined by the United States Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).   We note, however, that Daubert dealt with the admissibility of scientific and expert proof under the Federal Rules of Evidence.   In McDaniel, we noted that our own rules of evidence are narrower than the corresponding federal rules.   While acknowledging the general principles espoused in Daubert, we declined to adopt Daubert and held that admissibility would ultimately be determined under Tenn. R. Evid. 702 and 703." 17 S.W.3d at 226.

 “The decision to admit scientific evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.  Begley, 956 S.W.2d at 475.   We find that the psychological tests in question were relevant to a determination of the appellant's competency to be executed.  Furthermore, Dr. Martell was clearly qualified to administer this battery of tests and form an opinion as to the significance of the results of those tests.   In addition, these types of standardized tests have long been recognized as scientifically valid and reliable, thus meeting the requirements outlined in McDaniel, and Van Tran. See, e.g., State v. Blanton, 975 S.W.2d 269, 278 (Tenn.1998);  State v. Payne, 791 S.W.2d 10, 17 (Tenn.1990)”  Id. at 227-8.

 State v. Coley, 32 S.W.3d 831 (Tenn. 2000) 

 Science in question: testimony by psychologist/eyewitness identification expert re the process of eyewitness identification; the relationship between stress and memory of an even; cross-racial identification; the confidence the witnesses have in the accuracy of their identifications and the actual accuracy of their identifications; the effect of time on the accuracy of memory;  and the suggestibility of the photographic line-up used in this case

 Result: evidence inadmissible

 “As a general rule, the admissibility of expert testimony in Tennessee is governed by Tenn.R.Evid. 701-706.   This case is governed specifically by Tenn.R.Evid. 702 which provides that expert testimony is admissible if it will ‘substantially assist the trier of fact to understand the evidence or to determine a fact in issue....’ (Emphasis added.).   Expert testimony regarding eyewitness identification arguably fails to satisfy the plain meaning of this language.   Eyewitness testimony has no scientific or technical underpinnings which would be outside the common understanding of the jury;  therefore, expert testimony is not necessary to help jurors ‘understand’ the eyewitness's testimony.   Moreover, expert testimony about the eyewitness's accuracy does not aid the jury in determining a fact in issue because the question whether an eyewitness should be believed is not a "fact in issue" but rather a credibility determination.”  32 S.W.3d at 833.

 “Here, as in Ballard [pre-Daubert/McDaniel decision precluding the admission of expert testimony describing behavior of allegedly sexually abused child] we are presented with testimony of a general nature designed to affect the juror's decision on the credibility of witnesses. Using the Ballard rationale, expert testimony concerning eyewitness identification ‘solicits the danger of undue prejudice or confusing the issues or misleading the jury....’ Id. at 561.   As a result, it may ‘lead a jury to abandon its responsibility as fact finder and adopt the judgment of the expert,’ rather than ‘assist’ the jury in making its own determination of credibility.  See Id.”  Id. at 835.

 “Governed by the fundamental principles of McDaniel, and the rationale of Ballard and Dyle, we find that expert testimony concerning eyewitness identification simply offers generalities and is not specific to the witness whose testimony is in question.   Moreover, we are of the opinion that the subject of the reliability of eyewitness identification is within the common understanding of reasonable persons.   Therefore, such expert testimony is unnecessary.   It may mislead and confuse, and it could encourage the jury to abandon its responsibility as fact-finder....For these reasons, we find that general and unparticularized expert testimony concerning the reliability of eyewitness testimony, which is not specific to the witness whose testimony is in question, does not substantially assist the trier of fact.”  Id. at 837-8.

 State v. Smith, 42 S.W.3d 101 (Tenn. Crim. App. 2000)

 Science in question: testimony by interrogators that criminal suspects typically deny committing offenses before confessing during police interrogation

 Result: evidence inadmissible

 “We conclude that the challenged testimony of Brown and Greene that criminal suspects typically deny committing offenses before confessing during police interrogation was not admissible as expert testimony. First, the testimony was simply not relevant. Rule 401 of the Tennessee Rules of Evidence states that " '[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Here, the general behavior of other criminal suspects during questioning by police had no value in the determination of whether Defendant was guilty of the offenses for which he was charged in this case. Second, evidence about the behavior of criminal suspects in other cases did nothing to assist the trier of fact to understand the evidence or determine a fact in issue. Further, there was absolutely no evidence from which it can be determined that the underlying facts or data upon which Brown and Greene relied on in reaching their opinions were trustworthy. Therefore, the challenged testimony of Brown and Greene was not admissible expert opinion testimony.” 42 S.W.3d at 112.
 

Non-published or non-final Tennessee Cases

 State v. Reid, 2001 WL 584283 (Tenn. Crim. App. 2001)

 Science in question: using a ruler and photographs as a basis of comparing shoe prints with shoe size (the “field of shoe and footprint comparison”) 

Result: evidence admissible

 Agent Littlejohn testified that a ruler was placed near the shoe print found at the crime scene before the photograph was taken. The negatives were later developed and ‘one to one photographs were made, and that would be where the negative is enlarged to where the ruler in the photograph is actually the same size of the ruler next to the print at the scene, so the photographs ... would be exactly the same size as the print at the crime scene.’ Both tread and length were determined using this same technique. After comparing the photograph and the shoes, Agent Littlejohn testified that none of the treads on the shoes recovered from the Appellant's apartment matched the print left at the crime scene. Although Agent Littlejohn testified that she could not speculate as to the actual size of the shoe worn by the perpetrator because different styles and brands would vary slightly in length, she did testify, however, that the length of the shoe print found at the scene fell within the range of lengths of the nine pairs of shoes seized from the Appellant's apartment. Specifically, she testified that the shoe print found at the scene measured 12 and 3/8 inches in length. The shoes taken from the Appellant's apartment ranged from 11 13/16 inches to 12 1/2 inches in length.”  2001 WL 58423 at 25.

 “We conclude that the above text [a colloquy which involved the trial court asking the Daubert questions and the cop answering yes; no defense objection or questioning], along with other testimony presented at the jury-out hearing, more than satisfies the factors set forth in McDaniel. The evidence presented at both the jury-out hearing and trial indicated that the technique used by Agent Littlejohn was standard procedure and widely accepted in the field of shoe and footprint comparison. Agent Littlejohn properly qualifies as an expert in shoe and footprint comparison and her testimony would have substantially assisted the trier of fact due to her education, experience, and training. See Tenn.R.Evid. 702.”  Id. at 26.

  State v. Stephens, 2001 WL 579054 (Tenn.Crim.App. 2001)

 Science in question: testimony by crime scene expert as to the likely motive for the crime (disorganized sexual homicide)

 Result: evidence inadmissible

 “While there is no Tennessee case specifically setting forth factors to consider in determining the reliability of ‘specialized’ or ‘technical’ evidence, as opposed to ‘scientific’ evidence, we believe that the factors set forth in McDaniel may be relevant and applicable to ‘technical’ or ‘specialized evidence in a given case. See Kumho Tire Co., Ltd. ., v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding, under the federal rules, that the established factors to consider in determining the reliability of scientific evidence ‘may or may not be pertinent in assessing reliability [of technical or other specialized evidence], depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony’). No matter what type of evidence is at issue, the evidence should be derived from ‘relevant ... methods, processes, and data, and not upon an expert's mere speculation.’ See McDaniel, 955 S.W.2d at 265. According to Mr. McCrary, the system of analysis he used in analyzing this crime scene is not a ‘hard science,’ but it is based on methods, processes, and data developed by the FBI for the investigation of violent crime. Thus, we cannot say, as urged by the Defendant, that the trial court applied an incorrect legal standard by looking to McDaniel to determine the reliability of the evidence and by considering in its ruling the objective peer review of the methods and processes used and the principles, scientific or otherwise, on which the evidence was based.”  2001 WL 579054 at 18.

 After discussing two cases in other jurisdictions where similar testimony was admitted under Daubert the Court states:  “Applying Tennessee's more stringent requirement that expert testimony ‘substantially assist the trier of fact,’ we cannot find that the trial court abused its discretion by ruling that Mr. McCrary's testimony was not reliable enough to substantially assist the trier of fact in understanding the evidence or in determining a fact in issue. Tennessee courts have been hesitant to admit expert testimony dealing with behavioral characteristics of offenders or victims in order to prove that a certain crime did or did not occur as alleged.”  Id. at 19.

 “Mr. McCrary was attempting to do more than merely explain the characteristics of a crime scene. His testimony offered an opinion on the psychological motives of the perpetrator, based solely on the evidence left at the crime scene. Mr. McCrary was prepared to testify that he could determine the motive of the perpetrator by comparing the crime scene at issue to "typical" crime scenes in which the motivation is a sexual assault brought about by a precipitating stressor. Thus, like in Ballard, Ashburn, and Campbell, the testimony was attempting to show that a crime did or did not occur as alleged based on the manner in which a person behaved. Moreover, Mr. McCrary himself testified that an internal FBI study determined the accuracy rate of crime scene analysis and criminal profiling to be seventy-five to eighty percent accurate. Considering the above cases, the seventy-five to eighty percent accuracy rate, and the ‘special aura’ of expert testimony, we conclude that the trial court did not abuse its discretion by determining that the proposed expert testimony was not reliable enough to substantially assist the trier of fact.”

 State v. Garcia, 2002 WL 242358 (Tenn.Crim.App. 2002)

 Science in question: testimony concerning the practices of criminal organizations dealing in illegal drugs

 Result: evidence inadmissible

 “In support of his challenge, the appellant seeks to analogize Rosales' testimony to expert testimony concerning the reliability of eyewitness testimony. Our supreme court addressed the admissibility of the latter in Coley, 32 S.W.3d at 833-838. The court concluded that ‘general and unparticularized expert testimony concerning the reliability of eyewitness testimony, which is not specific to the witness whose testimony is in question, does not substantially assist the trier of fact.’ Id. at 838....We agree with the appellant that our supreme court's decision in Coley has some bearing upon the instant case. Like the expert testimony at issue in Coley, Rosales' testimony concerning the care with which organizations dealing in illegal drugs select their drug couriers and the method by which the courier's fee is calculated was of a general nature and was not specific to this case. Indeed, the connection between the expert testimony and the case at hand is more attenuated than that in Coley as, even assuming Rosales' generalizations concerning criminal organizations can be applied with confidence to any one organization, the State did not introduce evidence, nor bring any charges, concerning the appellant's participation in such an organization. Cf. State v. Michael F. Marasciello, No. M1997-00049-CCA-R10- CD, 2000 WL 1130126, at * *19-20 (Tenn.Crim.App. at Nashville, July 28, 2000), perm. to appeal denied, (Tenn.2000)(publication pending). Accordingly, contrary to the State's position on appeal, whether such organizations would entrust large quantities of illegal drugs to an unwitting courier does not make the appellant's knowledge of the methamphetamine any more or less probable. Tenn. R. Evid. 401.”  2002 WL 242358 at 32-33.

 Other Resources

 Federal Judicial Center, Reference Manual on Scientific Evidence, 2d ed.

Margaret A. Berger, “The Supreme Court’s Trilogy on the Admissibility of Expert Testimony” 

http://www.fjc.gov/newweb/jnetweb.nsf/ism_recent_publications?OpenFrameSethttp://www.fjc.gov/newweb/jnetweb.nsf/ism_recent_publications?OpenFrameSet

(Available for download under the Evidence link)

 Bibliography of Daubert-related issues http://www.law.umich.edu/thayer/may01bib.htm#daub

 Evidence and Expert Testimony Bibliography http://www.willyancey.com/evidence.htm

 Admissibility of Scientific Evidence after Daubert  http://faculty.ncwc.edu/toconnor/daubert.htm 

Kim Kruglick’s Forensic Resource and Law website  http://www.kruglaw.com/

The Judge as Gatekeeper Bibliography  http://faculty.law.lsu.edu/ccorcos/biblio/DaubertMain.htm

 Susan Balliet, “Opinions and Expert Testimony,” The Advocate, Vol. 22 No. 5 (September 2000)  http://dpa.state.ky.us/library/advocate/sept00/Article7.htm

 Pamela Sutherland & Delia Henderson, “Expert Psychiatrists and Comments on Witness Credibility” http://www.smith-lawfirm.com/Sutherland_article.html

 List of cases where fingerprint evidence was litigated under Daubert

http://www.onin.com/fp/daubert_links2.html

 Faigman, D.L. (1995). The evidentiary status of social science under Daubert: Is it "scientific," "technical," or "other" knowledge? Psychology, Public Policy, & Law, 1, 960-979.

 Christopher Slobogin, Psychiatric Evidence in Criminal Trials: to Junk or Not to Junk?, 40 Wm. & Mary L. Rev. 1 (October 1998)