Recently, in Glazer v. State, an Arizona Court of Appeals discussed an interesting split among the federal circuit courts over the admissibility of evidence, and then skirted the issue itself. Here is the relevant excerpt:
The State argues the superior court erred in failing to make express admissibility or reliability findings under Arizona Rule of Evidence 702. The federal circuits are split on whether such findings are required. Compare United States v. Mitchell, 365 F.3d 215, 233–34 (3d Cir.2004) (reviewing merits of ruling on admissibility of expert evidence “adher[ing] to the usual precepts of abuse-of-discretion review,” where the trial court “elected not to make findings of fact or conclusions of law (written or oral)”) and Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 791–95 (6th Cir.2002) (similar) with United States v. Roach, 582 F.3d 1192, 1207 (10th Cir.2009) (noting trial court “is required to make specific, on-the-record findings that the testimony is reliable under Daubert ”); see also Mukhtar v. Cal. State Univ., Hayward, 319 F.3d 1073, 1076–77 (9th Cir.2003) (Reinhardt, J., dissenting from denial of rehearing en banc) (discussing various approaches). On the facts of this case, however, this court need not finally resolve whether such findings are ever required.
Because the superior court denied the State's motion in limine without an evidentiary hearing, this court may properly consider the same filings relied upon by that court in reaching that conclusion. Moreover, this court has the further benefit of the transcript of Dr. Bleyl's trial testimony—both to the jury and outside of the presence of the jury—to determine whether that testimony was properly admitted. Although this court encourages superior courts to make findings when addressing pretrial challenges pursuant to Arizona Rule of Evidence 702, and such findings may be required when evidence is excluded, in this case, the superior court did not err in failing to make express findings regarding the admissibility of Dr. Bleyl's trial testimony.
As a practical matter, if the court wanted to incentivize trial courts to make express findings about admissibility, it should have excluded the testimony in this case to send a message. By making an exception in this case while encouraging lower courts to do the opposite, the court is sending mixed signals - not only to the lower courts, but also to litigants, who are more likely to take their chances with dubious (but expensive) testimony if there is a chance the court will let it slide.
- Drury Stevenson