Court reaffirms Frye as Nevada evidentiary standard.
The Court’s first published opinion of 2010, Higgs v. State, was initially released in May 2009, as an unpublished order. The Court rejected Higgs’ various challenges to his conviction for the murder of his wife, Kathy Augustine, including the argument that a failure to grant a continuance to allow a defense expert a longer opportunity to review the prosecution’s
The opinion was noteworthy for its extensive discussion of the different standards for admission of expert testimony presented by NRS 50.572 and the near identically worded FRE 702. Amicus curiae Nevada Justice Association moved for the publication of the ruling, which the Court granted.
Although in federal courts, the admission of expert testimony is governed by the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in Nevada, the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) continues to be the appropriate standard. The Court noted that to the extent Daubert presents a flexible approach, it may be considered persuasive, but a mechanistic application of the factors cited in Daubert is not appropriate in Nevada courts.
Under Frye, expert opinion based on a scientific technique is inadmissible unless the technique has “gained general acceptance in the particular field in which it belongs.” Under Daubert, admissibility is based upon the testimony’s “relevance and reliability.” The difficulty of Daubert, however, is the tendency to apply the factors listed therein in a mechanical way, even those such factors were expressly not intended to be a definitive checklist, and would not even logically apply to situations outside scientific fields. In Higgs, the Court clarifies that admissibility standards for expert testimony in Nevada courts are not limited to the factors set forth in Daubert.
Hardesty drafted the 4-2 opinion, issued January 14, 2010. Pickering recused. Cherry and Saitta each filed separate dissents, with Cherry’s more strongly worded.
The dissents, however, were not directed at the Frye/Daubert debate, but instead, were directed at the Court’s conclusion that Higgs’s rights had not been violated by the denial of the continuance. Both Cherry and Saitta expressly concurred with the Court’s reaffirmance of Frye as the appropriate evidentiary standard.
