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Last Post 29 Jun 2011 06:13 PM by  marmstrong
R-10-0035 Arizona Rules of Evidence; Arizona Rules of Criminal Procedure
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Author Messages

20 Dec 2010 11:19 AM

    Petition to Amend the Arizona Rules of Evidence and Rule 17.4(f), Arizona Rules of Criminal Procedure

    Would amend the Arizona Rules of Evidence, as appropriate, to conform to the Federal Rules of Evidence and implement a conforming change to Arizona Rule of Criminal Procedure 17.4(f).

    Mark W. Armstrong
    Ad Hoc Committee on Rules of Evidence
    1501 West Washington Suite 445
    Phoenix, AZ 85007-3231
    Fax (602)452-3482
    [email protected]
    Arizona Bar Number 004945

    Filed December 20, 2010

    Comments due May 20, 2011.

    ADOPTED as modified, effective January 1, 2012.

    14 Mar 2011 03:50 PM
    Amending Ariz. R. Evid. 702 to conform to its federal counterpart is the best option. The Logerquist/Frye paradigm has not worked well, and lacks coherence. Indeed, it places Arizona outside either of the two principal approaches to expert testimony (Frye and Daubert) because of its unique view of inductive reasoning by a clinical psychologist. The third option proposed to the Court does not appear well reasoned. If one aspect of expert testimony is an issue for the trier of fact, then the other aspects listed in that option are equally best left for the trier of fact. Moreover, the third option places Arizona even further outside the mainstream by essentially rejected Frye or Daubert in any capacity. We must remember that expert testimony is necessary in certain cases because we recognize that certain subject matter is beyond the everyday understanding of jurors. Thus, we admit that jurors do not possess the tools to critically evaluate the raw data and reach an appropriate conclusion. It makes little sense to suggest, however, that lay jurors possess that same ability to evaluate the competing experts' methodologies and to provide a reasoned analysis of those experts' opinions. It is essential that the trial judge at least initially review that methodology to ensure that only reliable evidence reach the jury.

    James D. Smith (016760)
    2 N. Central Ave.
    Suite 2200
    Phoenix, AZ 85004
    jdsmith at bryancave.com

    04 May 2011 01:07 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    4201 N. 24th Street, Suite 200
    Phoenix, AZ 85016-6288
    (602) 252-4804
    [email protected]

    17 May 2011 07:12 PM
    Lindsay Simmons, MSW
    Systems Advocacy Coordinator
    Arizona Coalition Against Domestic Violence
    2800 N. Central Avenue, Ste. 1570
    Phoenix, AZ 85004
    Phone: 602-279-2900
    TTY: 602-279-7270
    Fax: 602-279-2980
    Email: [email protected]

    The Arizona Coalition Against Domestic Violence was formed in 1980 to increase public awareness about the issue of domestic violence, enhance the safety of and services for victims of domestic violence, and reduce the incidents of domestic violence in Arizona families. Our mission is to lead, to advocate, to educate, to collaborate, to end domestic violence in Arizona. We are a non-governmental, non-profit membership organization that works with more than 170 formal members and allies to carry out our mission and objectives.

    In many criminal domestic violence cases when law enforcement is called to the scene, a victim/witness will disclose the actual details immediately following or during the incident to secure her and her families’ safety. Later, out of fear or after being threatened or intimidated by her abuser, the victim/witness might determine that it is safer for her and her family to deny or change statements made during or immediately following the criminal offense. (We recognized that men can be and are victims, as well; however, research has shown that in heterosexual relationships, victims are overwhelmingly women). Unfortunately, being arrested or charged with domestic violence does nothing to stop some abusers from continuing to harass, stalk, threaten, or harm their victims; a victim/witness might rightfully believe that if she does not recant, her life is in danger.

    Current Arizona Rules allow prosecutors to present the victim’s initial statements, even if they are contrary to more recent statements or testimony, as non-hearsay during the case. The jury then decides which description of the incident is accurate. This is an important tool for prosecutors to use in order to move forward with charges of domestic violence, which allows us as a community to hold offenders accountable for their violence.

    We urge the court to reject the Federal language pertaining to Rule 801 (D)(1)(A). If adopted, the language change would severely negatively impact the way domestic violence cases are prosecuted.


    19 May 2011 06:31 PM
    James P. Walsh
    Pinal County Attorney
    PO Box 887
    Florence, AZ 85132
    520-866-6282 phone
    520-866-6423 fax
    [email protected]

    20 May 2011 01:41 AM
    Amy Langerman (Az State Bar #009174)
    Law Offices of Amy G. Langerman
    951 Coronado Avenue
    Coronado, CA 92118
    [email protected]

    Because the existing version of Arizona Rule of Evidence 702 works well, I oppose the proposed changes to that rule. I have been practicing law since 1983, and have tried scores of civil trials, usually representing plaintiffs, but occasionally representing defendants. I am a past president of the Arizona Trial Lawyers Association, past president-elect of the Arizona Employment Lawyers Association, and a former Judge Pro Tem for the Maricopa County Superior Court.
    Of the cases that I personally tried, or over which I presided as a judge pro tem, most included expert testimony. Under the existing standards (particularly Rules 104(a), 105, 403, and 702) the trial judges in front of whom I have appeared have always been able to insure a fair trial for both sides. Proponents of change grouse that the current rules “have not worked well.” But they cite not even one case where a “kook” or “junk scientist” placed unreliable testimony before an Arizona jury. Given the high quality of our trial judges, I’ll wager that it has never happened—and never will.
    I also base my comments on my perspective as a member (and chair, for two terms) of the Amicus Curiae Committee of the American Association of Justice (formerly Association of Trial Lawyers of America). That experience began in 1987. The Committee receives requests from lawyers across the nation seeking help in resolving hard appellate issues. Those requests reveal that, since the federal courts and some state courts have adopted Daubert, many trial judges have used it to reject expert testimony tha4t would have been admissible under the Frye standard. The result has been that many meritorious cases never reach juries. Indeed, a cottage industry has developed just to litigate Daubert issues.
    Although Judge Susan Bolton testified before the rules committee that, in her experience, there has not been a rash of Daubert hearings in her court, that may be in part because of the political desire to get the state rule changed first. Professor Thomas Mauet testified that adopting Daubert would result in a “proliferation of hearings.” See Minutes of 10/15/10 Meeting of the Ad Hoc Committee on Rules of Evidence at page 2. My experience in dealing with appellate requests from states that have unwisely adopted Daubert confirms the wisdom of Professor Mauet’s prediction. In those states, large law firms litigating cases that are expert-dependent have designated Daubert specialists who rush in to raise Daubert challenges even when novel scientific evidence is not involved. Those cases include run-of-the mill cases with routine medical-malpractice causation issues and other cases that have been tried for years without controversy under Frye.
    Nationally, Rule 702 issues are some of the most prevalent, contentious ones coming to our Amicus Curiae Committee. My fear is that, under the “if you build it, they will come” effect, high-priced, unscrupulous Daubert specialists will invade Arizona state courts. They will then raise “reliability” challenges in expert-dependent cases simply because they can charge vast sums for their Daubert services by promising to skew case outcomes. In Arizona, the Daubert specialists will justify their costly new “case within a case” litigation strategy through the “new rule.” They will argue that the “new rule” has “changed the judicial landscape" and fundamentally “upped” the standards. (Of course, before the Arizona rules committee, the Daubert proponents have claimed that we simply need the new rule to be uniform and the results will be the same. If the results will be the same, why change?)
    The end result will be adding needless hurdles and costs to litigation in a state where our judges and juries have always fairly and rationally applied the existing standards. Adopting Daubert will adopt Daubert’s misbegotten progeny (as inconsistently interpreted across the country). That alone will generate controversy, cause confusion, create inconsistency, inflate costs, and increase litigation. Again, no one has ever identified even one Arizona case where the existing standards allowed unreliable or junk science into evidence. Adopting a Daubert standard will take many meritorious cases from juries because trial judges will now believe that they have a new duty—under a new rule—to apply a different standard, and become the sole credibility-and-reliability oracles.
    I understand that there are some perceived issues presented by attorneys working in the criminal-justice arena. I have no direct, personal knowledge about Rule 702 issues in criminal cases, although I have followed many exoneration cases that the Innocence Project has pursued across the nation. What I can say is that if this Court believes that there is some problem in criminal cases, then the solution is to fix the problem there and not to fix a problem absent from civil cases.
    If there is a problem, it is not admitting “junk science.” The problem is biased or incompetent experts misapplying “good science.” And that is a problem that adopting Daubert will not solve in criminal cases. Instead, Daubert will exacerbate the situation in criminal cases, where the issue is largely the expert-funding disparity between the government and private defendants. Changing Rule 702 will not end the government’s tremendous financial advantage. As I read the cases and the controversy, much of the so-called “unreliable” testimony would still appear in criminal cases under either Daubert or Frye. That is so because the problem is not the science but determining what should be seen as “reliable” science when presented by an otherwise “questionably-reliable” hired gun. What criminal defense lawyers need is funding to retain their own experts to review evidence and present testimony to the jury. That will let the jury determine the fundamental “who should we believe” question. Indeed, in my personal experience, that is what routinely occurs in expert-dependent, civil litigation cases.
    Finally, I respond to the uniformity argument of those who support adopting Daubert. Being the same as everyone else is not a reason, by itself, to change a rule that has served us well. Former Chief Justice Stanley Feldman spoke before the Rules Committee and noted that 15 states have adopted Frye, 25 states have adopted Daubert, and 6 states have adopted a hybrid. Minutes of 9/17/10 meeting of Ad Hoc Committee on Rules of Evidence at page 3. Professor Mauet added that “four of the five largest states are Frye states.” Minutes of 10/15/2010 meeting of Ad Hoc Committee on Rules of Evidence at page 2. With Arizona’s unique constitutional framework, there is no basis to change this rule simply to be “uniform.” After all, in important and mostly positive ways, Arizona is not uniform with the rest of the nation. And, respectfully, there appears to be no uniformity nationally on this issue in any event. Since no objective evidence suggests a “problem” in Arizona that Daubert will fix without creating even more problems, this Court should follow those on the rules committee who ask that the Court do nothing with respect to Rule 702.
    I oppose both the proposed change adopting Daubert and the proposed Mauet rule. Arizona does not need a cottage industry of Daubert lawyers churning cases with costly, time-consuming Daubert hearings. Guided by merit-selected judges and our state’s unique constitution, our juries can ensure efficient, fair trials. Arizona juries have been determining witness credibility and reliability for 99 years, even for experts. We should let them continue.

    20 May 2011 11:18 AM
    Elizabeth Ortiz (012838)
    Kimberly W. MacEachern (011331)
    Arizona Prosecuting Attorneys' Council
    1951 West Camelback Road, Ste. 202
    Phoenix, Arizona 85015
    602-274-4215 - Fax
    [email protected]
    [email protected]

    20 May 2011 11:20 AM
    (FIRM STATE BAR NO. 00032000)

    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    [email protected]
    20 May 2011 12:48 PM
    Lindsay Herf
    Arizona Justice Project

    c/o Sandra Day O'Connor College of Law
    P.O. Box 877906
    Tempe, AZ 85287-7906
    Tel (480) 965-7198
    Fax (480) 727-9157
    [email protected]
    AZ Bar # 027554

    20 May 2011 03:52 PM
    2340 W. Ray Road, Suite 1
    Chandler, Ariz. 85224
    TEL: (480) 812-1700

    JOHN A. CANBY, SB#010574
    [email protected]
    DAVID J. EUCHNER, SB#021768
    [email protected]
    JOE KEILP, SB#003356
    [email protected]

    20 May 2011 04:00 PM
    Mary Marshall
    Public Affairs Officer
    Arizona Criminal Justice Commission
    1110 W Washington St., #230
    Phoenix, AZ 85007
    (602) 364-1156
    [email protected]

    Please be advised that the Arizona Criminal Justice Commission is opposing the proposed rule change to the hearsay rule under Arizona Rule 801(d)(1)(A). During a public meeting of the Commission on May 19, 2011, the Commission discussed the pending rule change. It was noted that the Maricopa County Attorney’s Office, the Pima County Attorney’s Office, the Arizona Prosecuting Attorneys Advisory Council (APAAC) and the Arizona State Bar all have filed petitions against conforming Arizona Rule 801(d)(1)(A) to the federal Rule 801(d)(1)(A). Maricopa County Attorney Bill Montgomery and Pima County Attorney Barbara LaWall are both members of the Arizona Criminal Justice Commission. Mr. Montgomery was present at the meeting; Deputy Pima County Attorney Kathleen Mayer was present as Ms. LaWall’s designee for the meeting. Both spoke to the positions taken by their office as well as the opposition filed by APAAC and the Arizona State Bar. The Commission members had copies of the opposition petitions as well as the proposed rule change.

    The Commission approved a formal motion to oppose the rule change for the following reasons:
    1. The possible negative impact to victims
    2. The increased cost to the system because of the need to depose witnesses and victims instead of relying on pretrial interviews
    3. The ability to prosecute domestic violence cases, which frequently must be pursued with a victim who becomes uncooperative (this will also have a similar impact on gang-related prosecution and child molestation cases)
    4. The impact to defendants who could have exculpatory evidence excluded under this rule change.

    The Commission also looked at how this might weigh against perceived benefits of changing this hearsay rule. It was discussed that some attorneys practice both in both state and federal settings and that conforming the state and federal rules to a uniform standard would streamline the process for these attorneys and firms that practice in both settings. It was also discussed that witnesses, victims and defendants are more likely to tell the truth under threat of perjury in a deposition than during a pretrial interview. The Commissioners are unaware of research that substantiates this or any indication that there is a substantial variance of honesty among witnesses that are formally deposed versus those that give a statement during pretrial interviews.

    As such, the Commission could find no compelling reason to support such a change but was concerned about the possible adverse impact to stakeholders of the system, most notably victims and defendants. The Commissioners believe that the current system is more conducive to allowing the facts to be presented to a jury. Further, it was unclear that the current system has been proven ineffective and the changes are necessary to incur not only the exponential increase in time and costs, but to potentially subject victims to additional burdensome processes and possibly eliminate statements that might result in acquittal for defendants.

    The petitions filed by the stakeholders mentioned above give extensive detail regarding the impact to their functions as well as their opinion regarding the impact to the system overall. After careful consideration, the Arizona Criminal Justice Commission supports their opposition and respectfully requests that the Arizona Supreme Court refrain from making such changes as the adverse impact to the system would outweigh any perceived benefit. The Commission believes that the current Arizona Rule 801(d)(1)(A) is serving Arizona well and the proposed changes are unwarranted and potentially harmful to the system.


    20 May 2011 05:04 PM
    John M. Curtin, Esq. (011435)
    301 East Bethany Home Road, Suite B-100
    Phoenix, Arizona 85012
    (602) 285-0100, Fax: (602) 265-0267
    President, Arizona Trial Lawyers Association/
    Arizona Association for Justice

    Stanley G. Feldman, Esq. (000838)
    One South Church Avenue, Suite 900
    Tucson, Arizona 85701-1620
    (520) 792-3836, Fax: (520) 624-5080
    [email protected]

    David L. Abney, Esq. (009001)
    8777 North Gainey Ranch Drive, No. 181
    Scottsdale, Arizona 85258, (480) 991-7677
    [email protected]
    Co-Counsel and Co-Chairs of the Amicus Committee
    for the Arizona Trial Lawyers Association/
    Arizona Association for Justice


    20 May 2011 07:01 PM
    Barbara LaWall
    Pima County Attorney
    32 N. Stone, Ste. 1400
    Tucson, AZ 85701
    [email protected]
    State Bar #004906

    29 Jun 2011 06:13 PM


    Hon. Mark W. Armstrong
    Staff Attorney, Arizona Supreme Court
    Superior Court Judge (Ret.)
    1501 W. Washington, Suite 415
    Phoenix, AZ 85007-3231
    Telephone: (602) 452-3387
    Facsimile: (602) 452-3482
    Staff, Ad Hoc Committee on Rules of Evidence