Daubert hearing in Kentucky

2026However, this was not a contemporaneous objection made during trial to strike any tangible or 18 In Tharp, 40 S.W.3d at 368 , the Kentucky Supreme Court addressed a similar situation where a Daubert hearing was not requested, holding that “[w]e decline to speculate on the outcome of an unrequested Daubert hearing, or to hold that the failure to conduct such a hearing sua sponte constitutes palpable error.” This was reaffirmed in Davis v. Commonwealth, 147 S.W.3d 709, 728 (Ky. 2004).

2026However, this was not a contemporaneous objection made during trial to strike any tangible or 18 In Tharp, 40 S.W.3d at 368 , the Kentucky Supreme Court addressed a similar situation where a Daubert hearing was not requested, holding that “[w]e decline to speculate on the outcome of an unrequested Daubert hearing, or to hold that the failure to conduct such a hearing sua sponte constitutes palpable error.” This was reaffirmed in Davis v. Commonwealth, 147 S.W.3d 709, 728 (Ky. 2004).

2025Under the Daubert standard, the trial court must make a preliminary determination “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Id., 509 U.S. at 592 , 113 S. Ct. at 2796 .

2025Under the Daubert standard, the trial court must make a preliminary determination “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Id., 509 U.S. at 592 , 113 S. Ct. at 2796 .

2024Commonwealth v. Christie, Ky., 98 S.W.3d 485, 488 (2002).”); Tharp v. Commonwealth, 40 S.W.3d 356, 367-68 (Ky. 2000) (holding that trial court’s failure to conduct Daubert hearing sua sponte is not palpable error). 17 gloves worn by Olliphant’s boyfriend—when he had previously assaulted Cook—could have caused Cook’s fatal injuries.

2005Commonwealth v. Christie, Ky., 98 S.W.3d 485, 488 (2002)."); Tharp v. Commonwealth, 40 S.W.3d 356, 367-68 (Ky.2000), *213 cert. denied 534 U.S. 928 , 122 S.Ct. 289 , 151 L.Ed.2d 213 (2001) (holding that trial court’s failure to conduct Daubert hearing sua sponte is not palpable error); Collins v. Commonwealth, 951 S.W.2d 569 (Ky.1997). 31 .

2025Additionally, the “trial court has wide latitude in deciding how to test an expert’s reliability and in deciding whether or when special briefing or other 9 proceedings, i.e., at a Daubert hearing, is needed to investigate reliability.” Dixon v. Commonwealth, 149 S.W.3d 426, 430 (Ky. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

2025Additionally, the “trial court has wide latitude in deciding how to test an expert’s reliability and in deciding whether or when special briefing or other 9 proceedings, i.e., at a Daubert hearing, is needed to investigate reliability.” Dixon v. Commonwealth, 149 S.W.3d 426, 430 (Ky. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

2018"The test for abuse 8 ..._, . of discretion is whether the trial judge's decision was arbitrary, unreasonable, .. unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 ,- 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). ' In the case at bar, it appears that the trial court did not conduct a formal Daubert hearing.

2016See Fugate v. Commonwealth, 993 S.W.2d 931, 937 (Ky. 1999) (concluding that reliability of DNA testing "has been sufficiently established as to no longer require a Daubert hearing"); Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 579 (Ky. 2000) ("[A] trial court may take judicial notice of the reliability of these methods of analysis.").

2023This Court followed the [Eighth] Circuit 43 See, e.g., Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). 44 English, 993 S.W.2d at 945 . 45 120 S.W.3d 699 (Ky. 2003). 46 Id. at 700 . 47 Id. at 701 . 48 Id. 49 12 S.W.3d 258 (Ky. 1999). 23 decision in United States v. Martinez50 where “it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of reliability and validity of the scientific method, technique or theory at issue.” In Johnson, we held that microscopic examination of hair has sufficiently met

2023This Court followed the [Eighth] Circuit 43 See, e.g., Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). 44 English, 993 S.W.2d at 945 . 45 120 S.W.3d 699 (Ky. 2003). 46 Id. at 700 . 47 Id. at 701 . 48 Id. 49 12 S.W.3d 258 (Ky. 1999). 23 decision in United States v. Martinez50 where “it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of reliability and validity of the scientific method, technique or theory at issue.” In Johnson, we held that microscopic examination of hair has sufficiently met

2023Rather he sought only a Daubert hearing, and under Johnson v. Commonwealth and relying on the general acceptance of handwriting analysis as demonstrated by Marcum v. Gallup and Jones v. Sutton, a preliminary hearing was not required without a proffer of evidence challenging the reliability of the discipline at issue.56 Unlike in Florence, this Court has made a definitive statement that while “extrapolation evidence is not required for the Commonwealth to make a prima facie case of a violation of KRS 189A.010(1)(a),” nothing “precludes the Commonwealth, or the defendant, from using extrapolatio

2023Rather he sought only a Daubert hearing, and under Johnson v. Commonwealth and relying on the general acceptance of handwriting analysis as demonstrated by Marcum v. Gallup and Jones v. Sutton, a preliminary hearing was not required without a proffer of evidence challenging the reliability of the discipline at issue.56 Unlike in Florence, this Court has made a definitive statement that while “extrapolation evidence is not required for the Commonwealth to make a prima facie case of a violation of KRS 189A.010(1)(a),” nothing “precludes the Commonwealth, or the defendant, from using extrapolatio

2018In Miller v. Eldridge , the Kentucky Supreme Court explained that though " Daubert factors are helpful in evaluating the reliability of expert testimony, they are not an exclusive list." Miller , 146 S.W.3d 909 , 918 (Ky. 2004).

2008The Daubert factors are simply a way of distinguishing “between science and pseudo-science.” Id. at 919.

2009See Mondie v. Commonwealth, 158 S.W.3d 203, 212 (Ky. 2005) (error unpreserved where defense counsel objected to witness’s testimony as that of a lay witness, but did not object to failure to qualify witness as an expert and did not request a Daubert hearing); Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001) (issue of failure to conduct Daubert hearing unpreserved where Appellant’s objection was premised on relevancy under KRE 401 and not on scientific reliability under KRE 702).

2009Tharp v. Commonwealth, 40 S.W.3d 356, 368 (Ky.2000) (“We decline to speculate on the outcome of an unrequested Daubert hearing, or to hold that the failure to conduct such a hearing sua sponte constitutes palpable error”); Mondie v. Commonwealth, 158 S.W.3d 203, 212 (Ky.2005) (issue of qualification as expert unpreserved where objection was to testimony as lay witness, and no Daubert hearing was requested). 14 What we should not do, however, is stretch our preservation rules past what had been recognized as the breaking point only to refuse to determine explicitly whether the contested evidenc

2025Additionally, the “trial court has wide latitude in deciding how to test an expert’s reliability and in deciding whether or when special briefing or other 9 proceedings, i.e., at a Daubert hearing, is needed to investigate reliability.” Dixon v. Commonwealth, 149 S.W.3d 426, 430 (Ky. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

2025Additionally, the “trial court has wide latitude in deciding how to test an expert’s reliability and in deciding whether or when special briefing or other 9 proceedings, i.e., at a Daubert hearing, is needed to investigate reliability.” Dixon v. Commonwealth, 149 S.W.3d 426, 430 (Ky. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

2024Even were we to determine that Detective Amos’s testimony in this area had been expert evidence, the trial court was not requested to hold a Daubert hearing before the testimony was admitted and such was not required here. 3 Next, the trial court also overruled Alford’s objection that there was a lack of foundation to Detective Amos testifying that he did not believe the MMA 3 See City of Owensboro v. Adams, 136 S.W.3d 446 , 451 n.1 (Ky. 2004) (“Nevertheless, a court need not always hold a Daubert hearing even when the evidence is offered in a jury trial, Clay v. Ford Motor Co., 215 F.3d 663,

2024Even were we to determine that Detective Amos’s testimony in this area had been expert evidence, the trial court was not requested to hold a Daubert hearing before the testimony was admitted and such was not required here. 3 Next, the trial court also overruled Alford’s objection that there was a lack of foundation to Detective Amos testifying that he did not believe the MMA 3 See City of Owensboro v. Adams, 136 S.W.3d 446 , 451 n.1 (Ky. 2004) (“Nevertheless, a court need not always hold a Daubert hearing even when the evidence is offered in a jury trial, Clay v. Ford Motor Co., 215 F.3d 663,

2015See Toyota Motor Corp., 136 S.W.3d at 40 .

2015See Toyota Motor Corp., 136 S.W.3d at 40 .

2026However, this was not a contemporaneous objection made during trial to strike any tangible or 18 In Tharp, 40 S.W.3d at 368 , the Kentucky Supreme Court addressed a similar situation where a Daubert hearing was not requested, holding that “[w]e decline to speculate on the outcome of an unrequested Daubert hearing, or to hold that the failure to conduct such a hearing sua sponte constitutes palpable error.” This was reaffirmed in Davis v. Commonwealth, 147 S.W.3d 709, 728 (Ky. 2004).

2026However, this was not a contemporaneous objection made during trial to strike any tangible or 18 In Tharp, 40 S.W.3d at 368 , the Kentucky Supreme Court addressed a similar situation where a Daubert hearing was not requested, holding that “[w]e decline to speculate on the outcome of an unrequested Daubert hearing, or to hold that the failure to conduct such a hearing sua sponte constitutes palpable error.” This was reaffirmed in Davis v. Commonwealth, 147 S.W.3d 709, 728 (Ky. 2004).

2016See Fugate v. Commonwealth, 993 S.W.2d 931, 937 (Ky. 1999) (concluding that reliability of DNA testing "has been sufficiently established as to no longer require a Daubert hearing"); Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 579 (Ky. 2000) ("[A] trial court may take judicial notice of the reliability of these methods of analysis.").

2016See Fugate v. Commonwealth, 993 S.W.2d 931, 937 (Ky. 1999) (concluding that reliability of DNA testing "has been sufficiently established as to no longer require a Daubert hearing"); Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 579 (Ky. 2000) ("[A] trial court may take judicial notice of the reliability of these methods of analysis.").

2007See Douglas v. Commonwealth, 83 S.W.3d 462, 464 (Ky.2001) (holding that sentencing judge was not required to hold Daubert hearing before considering presentence report containing results of tests that were administered to assess defendant's risk of recidivism).

2007Once the commission of the offense is established, the confession alone is sufficient proof that the confessor committed the crime."). [20] Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997). [21] Id. [22] Id. [23] Id. [24] KRS 510.110 and KRS 510.010(7) (defining sexual contact). [25] RCr 9.60. [26] 72 S.W.3d 566, 575 (Ky.2002). [27] See Douglas v. Commonwealth, 83 S.W.3d 462, 464 (Ky.2001) (holding that sentencing judge was not required to hold Daubert hearing before considering presentence report containing results of tests that were administered to assess defendant's risk of recidivism

2024Even were we to determine that Detective Amos’s testimony in this area had been expert evidence, the trial court was not requested to hold a Daubert hearing before the testimony was admitted and such was not required here. 3 Next, the trial court also overruled Alford’s objection that there was a lack of foundation to Detective Amos testifying that he did not believe the MMA 3 See City of Owensboro v. Adams, 136 S.W.3d 446 , 451 n.1 (Ky. 2004) (“Nevertheless, a court need not always hold a Daubert hearing even when the evidence is offered in a jury trial, Clay v. Ford Motor Co., 215 F.3d 663,

2024Even were we to determine that Detective Amos’s testimony in this area had been expert evidence, the trial court was not requested to hold a Daubert hearing before the testimony was admitted and such was not required here. 3 Next, the trial court also overruled Alford’s objection that there was a lack of foundation to Detective Amos testifying that he did not believe the MMA 3 See City of Owensboro v. Adams, 136 S.W.3d 446 , 451 n.1 (Ky. 2004) (“Nevertheless, a court need not always hold a Daubert hearing even when the evidence is offered in a jury trial, Clay v. Ford Motor Co., 215 F.3d 663,

2004This Court first adopted Daubert in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995). [3] In Goodyear Tire, supra , we followed Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999), and held that the Daubert analysis applies to all expert testimony, not just scientific testimony.

2004This Court first adopted Daubert in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995). [3] In Goodyear Tire, supra , we followed Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999), and held that the Daubert analysis applies to all expert testimony, not just scientific testimony.

2025Holbrook, 525 S.W.3d at 79-80 .

2024We previously explained that methodology in Holbrook v. Commonwealth, 525 S.W.3d 73, 80 (Ky. 2017): [C]ell phones are essentially radios, as they use radio signals to contact cell towers.

2025Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000) (citation omitted); Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 104 (Ky. 2008) (citations omitted).

2025Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000) (citation omitted); Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 104 (Ky. 2008) (citations omitted).

2025“The Daubert test is designed to keep out unreliable or ‘pseudoscientific’ expert scientific testimony that would confuse or mislead the jury, or that cannot legitimately be challenged in a courtroom.” Commonwealth v. Martin, 290 S.W.3d 59, 67 (Ky. App. 2008). “[E]ven accepting the trial court's assessment of its flaws, Dr. Butler’s opinions could not be described as ‘pseudoscientific’ or ‘junk science.’” Id.

2025“The Daubert test is designed to keep out unreliable or ‘pseudoscientific’ expert scientific testimony that would confuse or mislead the jury, or that cannot legitimately be challenged in a courtroom.” Commonwealth v. Martin, 290 S.W.3d 59, 67 (Ky. App. 2008). “[E]ven accepting the trial court's assessment of its flaws, Dr. Butler’s opinions could not be described as ‘pseudoscientific’ or ‘junk science.’” Id.

2023In those cases, it seems to have been assumed that the testimony was admissible.” Accordingly, the Court held, “the state of the law with respect to handwriting analysis is similar to Johnson v. Commonwealth, supra, wherein various fields of scientific inquiry were recognized to have achieved acceptance in Kentucky law, and are thus acceptable for judicial notice.”55 Further, the 50 3 F.3d 1191 (8th Cir. 1993). 51 Florence, 120 S.W.3d at 702 . 52 Id. at 702-03 . 53 237 S.W.2d 862 (Ky. 1951). 54 255 S.W.2d 658 (Ky. 1953). 55 Florence, 120 S.W.3d at 703 . 24 Court held that the defense did not s

2023In those cases, it seems to have been assumed that the testimony was admissible.” Accordingly, the Court held, “the state of the law with respect to handwriting analysis is similar to Johnson v. Commonwealth, supra, wherein various fields of scientific inquiry were recognized to have achieved acceptance in Kentucky law, and are thus acceptable for judicial notice.”55 Further, the 50 3 F.3d 1191 (8th Cir. 1993). 51 Florence, 120 S.W.3d at 702 . 52 Id. at 702-03 . 53 237 S.W.2d 862 (Ky. 1951). 54 255 S.W.2d 658 (Ky. 1953). 55 Florence, 120 S.W.3d at 703 . 24 Court held that the defense did not s

2023This Court followed the [Eighth] Circuit 43 See, e.g., Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). 44 English, 993 S.W.2d at 945 . 45 120 S.W.3d 699 (Ky. 2003). 46 Id. at 700 . 47 Id. at 701 . 48 Id. 49 12 S.W.3d 258 (Ky. 1999). 23 decision in United States v. Martinez50 where “it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of reliability and validity of the scientific method, technique or theory at issue.” In Johnson, we held that microscopic examination of hair has sufficiently met

2023This Court followed the [Eighth] Circuit 43 See, e.g., Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). 44 English, 993 S.W.2d at 945 . 45 120 S.W.3d 699 (Ky. 2003). 46 Id. at 700 . 47 Id. at 701 . 48 Id. 49 12 S.W.3d 258 (Ky. 1999). 23 decision in United States v. Martinez50 where “it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of reliability and validity of the scientific method, technique or theory at issue.” In Johnson, we held that microscopic examination of hair has sufficiently met

2023This Court followed the [Eighth] Circuit 43 See, e.g., Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). 44 English, 993 S.W.2d at 945 . 45 120 S.W.3d 699 (Ky. 2003). 46 Id. at 700 . 47 Id. at 701 . 48 Id. 49 12 S.W.3d 258 (Ky. 1999). 23 decision in United States v. Martinez50 where “it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of reliability and validity of the scientific method, technique or theory at issue.” In Johnson, we held that microscopic examination of hair has sufficiently met

2023This Court followed the [Eighth] Circuit 43 See, e.g., Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). 44 English, 993 S.W.2d at 945 . 45 120 S.W.3d 699 (Ky. 2003). 46 Id. at 700 . 47 Id. at 701 . 48 Id. 49 12 S.W.3d 258 (Ky. 1999). 23 decision in United States v. Martinez50 where “it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of reliability and validity of the scientific method, technique or theory at issue.” In Johnson, we held that microscopic examination of hair has sufficiently met

2023Because Seymour made no request for a Daubert hearing regarding Nurse Yazel’s testimony or methodology, nor does he 7 Stringer v. Commonwealth, 956 S.W.2d 883, 889 (Ky. 1997). 8 See Commonwealth, Dep’t of Highways v. Widner, 388 S.W.2d 583 , 586–87 (Ky. 1965). 9 956 S.W.2d at 891–92. 10 Id. 6 provide any argument in his brief alleging Nurse Yazel’s testimony to be deficient under the Daubert standard, we find the second element of the Stringer analysis to be met.

2023Because Seymour made no request for a Daubert hearing regarding Nurse Yazel’s testimony or methodology, nor does he 7 Stringer v. Commonwealth, 956 S.W.2d 883, 889 (Ky. 1997). 8 See Commonwealth, Dep’t of Highways v. Widner, 388 S.W.2d 583 , 586–87 (Ky. 1965). 9 956 S.W.2d at 891–92. 10 Id. 6 provide any argument in his brief alleging Nurse Yazel’s testimony to be deficient under the Daubert standard, we find the second element of the Stringer analysis to be met.

2021Ed. 2d 469 (1993), “[a] Daubert hearing refers to a pre-trial hearing where the trial judge initially determines if the witness’s opinion is based on scientifically valid principles and methodology, thereby rendering the opinion relevant and reliable.” Commonwealth v. McGorman, 489 S.W.3d 731 , 740 n.7 (Ky. 2016). -16- a Daubert hearing regarding whether Trooper Hedges has sufficient experience and training to base his opinion(s), in whole or part, on the toxicology report (assuming the report is properly authenticated and admitted).

2021See, e.g., Commonwealth v. McGorman, 489 S.W.3d 731, 740 (Ky. 2016) (denying RCr 11.42 relief because the movant had not “demonstrate[d] that had trial counsel filed a pre-trial Daubert motion, the result would have been any different.”).

2025See generally 291 S.W.3d 610 .

2025See generally 291 S.W.3d 610 .