Daubert factors in New Mexico

2021When determining whether scientific evidence is reliable, the district court should consider the Daubert factors, summarized by this Court in Torres: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field. 1999-NMSC-010, ¶ 25 (brac

2021When determining whether scientific evidence is reliable, the district court should consider the Daubert factors, summarized by this Court in Torres: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field. 1999-NMSC-010, ¶ 25 (brac

2019When scientific evidence is presented at trial, New Mexico trial courts act as gatekeepers to ensure “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); State v. Alberico, 1993-NMSC-047 , ¶ 51, 116 N.M. 156 , 861 P.2d 192 (adopting Daubert factors as a non-exclusive means to assess the validity 1Defendant argues on appeal that the device used to measure his speed was “unknown.” However, both parties referred to the device as a radar to the district court, as did Officer Smith, and Office

2018In addition to these four Daubert factors, New Mexico courts rely upon a fifth factor: "whether the scientific technique ... is capable of supporting opinions based upon reasonable probability rather than conjecture." Alberico , 1993-NMSC-047 , ¶ 47, 116 N.M. 156 , 861 P.2d 192 . {23} This Court reviews the admission of expert testimony for abuse of discretion.

2019When scientific evidence is presented at trial, New Mexico trial courts act as gatekeepers to ensure “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); State v. Alberico, 1993-NMSC-047 , ¶ 51, 116 N.M. 156 , 861 P.2d 192 (adopting Daubert factors as a non-exclusive means to assess the validity 1Defendant argues on appeal that the device used to measure his speed was “unknown.” However, both parties referred to the device as a radar to the district court, as did Officer Smith, and Office

2018In addition to these four Daubert factors, New Mexico courts rely upon a fifth factor: "whether the scientific technique ... is capable of supporting opinions based upon reasonable probability rather than conjecture." Alberico , 1993-NMSC-047 , ¶ 47, 116 N.M. 156 , 861 P.2d 192 . {23} This Court reviews the admission of expert testimony for abuse of discretion.

2019“In addition to these four Daubert factors, New Mexico courts rely upon a fifth factor: whether the scientific technique is capable of supporting opinions based upon probability rather than conjecture.” Id. (omission, internal quotation marks, and citation omitted); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Alberico, 1993-NMSC-047 , ¶ 47. {26} The district court held a Daubert-Alberico hearing over the course of two days.

2019When scientific evidence is presented at trial, New Mexico trial courts act as gatekeepers to ensure “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); State v. Alberico, 1993-NMSC-047 , ¶ 51, 116 N.M. 156 , 861 P.2d 192 (adopting Daubert factors as a non-exclusive means to assess the validity 1Defendant argues on appeal that the device used to measure his speed was “unknown.” However, both parties referred to the device as a radar to the district court, as did Officer Smith, and Office

2011In Alberico, 116 N.M. at 165-68, 861 P.2d at 200-04, our Supreme Court abandoned the “general acceptance” test of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir. 1923), in favor of the more flexible Daubert test for determining if expert opinion evidence involving scientific knowledge is reliable and therefore admissible under Rule 11-702.

2010In Alberico, 116 N.M. at 165-68, 861 P.2d at 201-04, our Supreme Court abandoned the "general acceptance" test of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), in favor of the more flexible Daubert test for determining if expert opinion evidence involving "scientific knowledge" is reliable and therefore admissible under Rule 11-702.

2011Defendant maintains that Officer Taylor’s testimony therefore fails the 7 requisite reliability assurances of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 8 U.S. 579 , 592-94 (1993) (adopting non-exclusive four-factor test in determining the 9 reliability of testimony based on scientific knowledge) and Kumho Tire Co. v. 10 Carmichael, 526 U.S. 137, 158 (1999) (holding that the Daubert standard applies to 11 all expert testimony, even expert testimony not based on scientific knowledge). 12 However, Defendant concedes that New Mexico courts have not expressly adopted 13 Daubert for non-scie

2011Defendant maintains that Officer Taylor’s testimony therefore fails the 7 requisite reliability assurances of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 8 U.S. 579 , 592-94 (1993) (adopting non-exclusive four-factor test in determining the 9 reliability of testimony based on scientific knowledge) and Kumho Tire Co. v. 10 Carmichael, 526 U.S. 137, 158 (1999) (holding that the Daubert standard applies to 11 all expert testimony, even expert testimony not based on scientific knowledge). 12 However, Defendant concedes that New Mexico courts have not expressly adopted 13 Daubert for non-scie

2022New 19 Mexico courts apply the Daubert standard to scientific testimony, see State v. Yepez, 20 2021-NMSC-010, ¶ 22 , 483 P.3d 576 , but if the expert’s testimony is based on 22 1 experience and training, “the court must evaluate a non-scientific expert’s personal 2 knowledge and experience to determine whether the expert’s conclusions on a given 3 subject may be trusted.” State v. Torrez, 2009-NMSC-029, ¶ 21 , 146 N.M. 331 , 210 4 P.3d 228 . 5 {34} Defendants contend that (1) Dr. Dupee’s opinion did not assist the trier of fact 6 because it was premised on a vague and unscientific notion of “

2022New 19 Mexico courts apply the Daubert standard to scientific testimony, see State v. Yepez, 20 2021-NMSC-010, ¶ 22 , 483 P.3d 576 , but if the expert’s testimony is based on 22 1 experience and training, “the court must evaluate a non-scientific expert’s personal 2 knowledge and experience to determine whether the expert’s conclusions on a given 3 subject may be trusted.” State v. Torrez, 2009-NMSC-029, ¶ 21 , 146 N.M. 331 , 210 4 P.3d 228 . 5 {34} Defendants contend that (1) Dr. Dupee’s opinion did not assist the trier of fact 6 because it was premised on a vague and unscientific notion of “

2009See State v. Torres, 1999-NMSC-010, ¶43 , 127 N.M. 20 , 976 P.2d 20 (“[Application of the Daubert [u Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993)] factors is unwarranted in cases where expert testimony is based solely upon experience or training.” (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513 , 1518 (10th Cir.1996))); accord United States v. Hankey, 203 F.3d 1160, 1168-70 (9th Cir.2000) (“The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [gang expert] testimony, whose reliability depends

2009See State v. Torres, 1999-NMSC-010, ¶43 , 127 N.M. 20 , 976 P.2d 20 (“[Application of the Daubert [u Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993)] factors is unwarranted in cases where expert testimony is based solely upon experience or training.” (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513 , 1518 (10th Cir.1996))); accord United States v. Hankey, 203 F.3d 1160, 1168-70 (9th Cir.2000) (“The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [gang expert] testimony, whose reliability depends

2015See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245-46 (10th Cir. 2000) (holding that the district court did not err in admitting testimony by Stan Smith even though it did not perform a Daubert analysis); Gurule v. Ford Motor Co., No. 29,296, mem. op., 2011 WL 2071701 , ¶ 8 (N.M.

2015See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245-46 (10th Cir. 2000) (holding that the district court did not err in admitting testimony by Stan Smith even though it did not perform a Daubert analysis); Gurule v. Ford Motor Co., No. 29,296, mem. op., 2011 WL 2071701 , ¶ 8 (N.M.

2010See also State v. Tollardo, 2003-NMCA-122, ¶ 17 , 134 N.M. 430 , 77 P.3d 1023 (stating that Alberico adopted "a more flexible inquiry" in which the general acceptance of the theory or technique is considered but is not controlling).

2010See also State v. Tollardo, 2003-NMCA-122, ¶ 17 , 134 N.M. 430 , 77 P.3d 1023 (stating that Alberico adopted "a more flexible inquiry" in which the general acceptance of the theory or technique is considered but is not controlling).

2010New Mexico courts rely upon the Daubert factors, along with a fifth factor: "whether the scientific technique ... is capable of supporting opinions based upon reasonable probability rather than conjecture." State v. Anderson, 118 N.M. 284, 291 , 881 P.2d 29, 36 (1994) (internal quotation marks and citation omitted). {15} Subsequent federal cases, such as Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999), have gone further and required that all expert testimony, not just scientific testimony, be subject to the Daubert-Alberico standard.

2010New Mexico courts rely upon the Daubert factors, along with a fifth factor: "whether the scientific technique ... is capable of supporting opinions based upon reasonable probability rather than conjecture." State v. Anderson, 118 N.M. 284, 291 , 881 P.2d 29, 36 (1994) (internal quotation marks and citation omitted). {15} Subsequent federal cases, such as Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999), have gone further and required that all expert testimony, not just scientific testimony, be subject to the Daubert-Alberico standard.

2010Id. at 1252-53.

2010Id. at 1252-53.

2020See United States v. Avitia-Guillen, 680 F.3d 1253, 1257 (10th Cir. 2012) (holding that “[w]here a party objects only to an expert’s qualifications, he does not preserve an objection to the expert’s methodology”). {44} Although Defendant raises no argument that admission of Ms. Sarker’s testimony constituted fundamental or plain error, we have the discretion to review the district court’s decision under these standards.

2019See, e.g., State v. Kramer, 299 N.W.2d 882, 885 (Wis. 1981) (acknowledging that the use of tuning forks is a well-recognized method for determining the accuracy of the radar device).

2009See State v. King, 2007-NMCA-130, ¶ 17 , 142 N.M. 699 , 168 P.3d 1123 (refusing to consider arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011 , 143 N.M. 157 , 173 P.3d 764 . {49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman as an expert witness, the State presented her primarily as a fact witness because she was the treating physician at the time that Child was brought to the University of New Mexico Hospital emergency room.

2009See State v. King, 2007-NMCA-130, ¶ 17 , 142 N.M. 699 , 168 P.3d 1123 (refusing to consider arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011 , 143 N.M. 157 , 173 P.3d 764 . {49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman as an expert witness, the State presented her primarily as a fact witness because she was the treating physician at the time that Child was brought to the University of New Mexico Hospital emergency room.

2009See State v. King, 2007-NMCA-130, ¶ 17 , 142 N.M. 699 , 168 P.3d 1123 (refusing to consider arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011 , 143 N.M. 157 , 173 P.3d 764 . {49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman as an expert witness, the State presented her primarily as a fact witness because she was the treating physician at the time that Child was brought to the University of New Mexico Hospital emergency room.

2009See State v. Torres, 1999-NMSC-010, ¶43 , 127 N.M. 20 , 976 P.2d 20 (“[Application of the Daubert [u Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993)] factors is unwarranted in cases where expert testimony is based solely upon experience or training.” (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513 , 1518 (10th Cir.1996))); accord United States v. Hankey, 203 F.3d 1160, 1168-70 (9th Cir.2000) (“The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [gang expert] testimony, whose reliability depends

2009See State v. Torres, 1999-NMSC-010, ¶43 , 127 N.M. 20 , 976 P.2d 20 (“[Application of the Daubert [u Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993)] factors is unwarranted in cases where expert testimony is based solely upon experience or training.” (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513 , 1518 (10th Cir.1996))); accord United States v. Hankey, 203 F.3d 1160, 1168-70 (9th Cir.2000) (“The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [gang expert] testimony, whose reliability depends

2009See State v. King, 2007-NMCA-130, ¶ 17 , 142 N.M. 699 , 168 P.3d 1123 (refusing to consider arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011 , 143 N.M. 157 , 173 P.3d 764 . {49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman as an expert witness, the State presented her primarily as a fact witness because she was the treating physician at the time that Child was brought to the University of New Mexico Hospital emergency room.

2009See State v. King, 2007-NMCA-130, ¶ 17 , 142 N.M. 699 , 168 P.3d 1123 (refusing to consider arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011 , 143 N.M. 157 , 173 P.3d 764 . {49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman as an expert witness, the State presented her primarily as a fact witness because she was the treating physician at the time that Child was brought to the University of New Mexico Hospital emergency room.

2009See State v. King, 2007-NMCA-130, ¶ 17 , 142 N.M. 699 , 168 P.3d 1123 (refusing to consider arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011 , 143 N.M. 157 , 173 P.3d 764 . {49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman as an expert witness, the State presented her primarily as a fact witness because she was the treating physician at the time that Child was brought to the University of New Mexico Hospital emergency room.

2008See Klawitter, 518 N.W.2d at 585 .

2008See Klawitter, 518 N.W.2d at 585 .

2005See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); see also State v. Munoz, 2004-NMCA-103 , 136 N.M. 235 , 96 P.3d 796 . {39} The arresting officer testified that he checked the logs to determine that the machine had been calibrated within five days prior to his administration of the test and that the logs showed that the machine was in working order.

2005See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); see also State v. Munoz, 2004-NMCA-103 , 136 N.M. 235 , 96 P.3d 796 . {39} The arresting officer testified that he checked the logs to determine that the machine had been calibrated within five days prior to his administration of the test and that the logs showed that the machine was in working order.

2004“Leaving discretion to trial courts rather than prescribing a per se rule does not seem to have changed practice substantially.” 13 That is, “even when presented with an opportunity to admit polygraph evidence, most [federal] district courts are decidedly reluctant to do so.” See State v. Porter, [ 241 Conn. 57 ] 698 A.2d 739, 776-77 (Conn.1997).

2004“Leaving discretion to trial courts rather than prescribing a per se rule does not seem to have changed practice substantially.” 13 That is, “even when presented with an opportunity to admit polygraph evidence, most [federal] district courts are decidedly reluctant to do so.” See State v. Porter, [ 241 Conn. 57 ] 698 A.2d 739, 776-77 (Conn.1997).