The Daubert Frye debate in Arizona sex crimes prosecutions

While in the past one thousand years, modern civilization has made great progress in scientific learning and understanding, it seems all that advancement has skipped Arizona state courts. And if it is up to the Arizona Supreme Court it will stay that way for the near future.

The Arizona Supreme Court is responsible for deciding the procedural rules that all courts, other than federal courts, must use. The Arizona State legislature cannot tell the court what procedural rules to use, but it can create substantive law. Arizona state courts use something called the Frye standard when deciding the admissibility of scientific evidence. In contrast, all federal courts use what is called the Daubert standard. The Daubert standard is based on the well reasoned falsification principle- most famously stated by Karl Popper, and emphatically defended by Black Swan theorist Nassim Taleb- which essentially means it's not science unless it can be tested and potentially refuted. If testimony is irrefutable, that is not necessarily a good thing, and it is certainly not scientific testimony. The Frye standard has no such philosophical underpinning.

The Arizona Supreme Court rejected Daubert in Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000). The Arizona state legislature has tried to force the state courts to adopt the Daubert standard by enacting senate bill 1189 and the resulting Arizona Revised Statute 12-2203. However, a state superior court has rejected ARS 12-2203 as unconstitutional because it ruled the standard of admissibility of scientific evidence is a procedural rule that the legislature cannot determine. So far, the Arizona Supreme Court has refused to rule on the matter, but it very well issue a ruling on January 4, 2011. Until the Supreme Court overrules the superior court ARS 12-2203 will remain in the dustbin of history, along with astrology and flat Earth theory.

This ruling could be very significant in a number of criminal matters, none more so than the prosecution of sex crimes and sexual offenses. The Maricopa County Attorneys' Offices likes to use "expert" witnesses who testify the general characteristics of sex crimes victims. These so called expert do not examine the actual putative victim; they just testify as to general characteristics of sex crimes victims. They cannot testify to the actual, individual victim because the rules of evidence do not allow one witness to testify as to the credibility of another witness. While their testimony is generic, it almost always supports the alleged victim's story with pseudo-scientific terminology. Essentially, the testimony of these experts is irrefutable in that there is no way they could be proven wrong. As such, the testimony is not scientific and would thus violate the falsification principle/Daubert statute.