## Facts

- The State of Arizona charged the defendant in La Paz County Superior Court with sexual offenses involving a minor.
- The defense sought to present testimony from Dr. Phillip Esplin, a forensic psychologist, about “false memory syndrome,” i.e., that a person can form and sincerely believe false memories of childhood trauma or sexual abuse.
- After Arizona amended Rule 702 effective January 1, 2012 (adding a reliability screen consistent with Daubert-style gatekeeping), the State asked the defense to provide materials supporting the factual basis and reliability of Esplin’s proposed opinions and methods.
- The defense did not provide documentation supporting the reliability of Esplin’s methods or showing how those methods would be applied reliably to the facts of the case.
- Despite the limited proffer, the superior court ruled that Esplin could testify and declined to conduct a Rule 702 evidentiary hearing requested by the State.
- The State filed a petition for special action in the Arizona Court of Appeals challenging the pretrial ruling admitting the testimony.

## Issues

1. Whether the superior court erred under amended Arizona Rule of Evidence 702 by admitting proposed testimony on false memory syndrome without requiring a showing that the testimony was based on sufficient facts or data and reliable principles and methods reliably applied to the case.
2. Whether the superior court could treat the reliability challenge as going only to weight and cross-examination, rather than making an admissibility determination under Rule 702.
3. Whether special-action jurisdiction was proper to review a pretrial expert-admissibility ruling where the State lacked an adequate remedy by appeal.

## Decision

- The Court of Appeals accepted special-action jurisdiction because the petition raised an important question about applying newly amended Rule 702 in a pending criminal case and posttrial review would not provide an adequate remedy.
- The court granted relief, holding that the superior court could not admit the proposed expert testimony without first performing the Rule 702 reliability analysis required by the amended rule.
- The court set aside the admission ruling and directed the superior court to conduct the required Rule 702 evaluation on an appropriate record (including a hearing if needed) before deciding whether, and to what extent, the testimony may be admitted.

## Legal Principles

- Under amended Ariz. R. Evid. 702, the proponent of expert testimony must show that: (a) the testimony will help the trier of fact; (b) it is based on sufficient facts or data; (c) it is the product of reliable principles and methods; and (d) the witness has reliably applied the principles and methods to the facts of the case.
- Rule 702 assigns the trial court an admissibility role on reliability and fit; the court may not bypass that role by characterizing reliability objections as matters solely for cross-examination or jury evaluation.
- The party offering the testimony bears the burden to make a record supporting admissibility, which commonly requires disclosure of the basis for the opinions, the principles and methods used, and why those methods are reliable and reliably applied in the particular case.
- When the proponent provides little or no support for reliability, admitting the testimony without the Rule 702 findings is an abuse of discretion under the amended rule.
- Special-action relief may be available to review a pretrial evidentiary ruling in a criminal case when the issue is legal in nature, likely to recur, and not effectively correctable through appeal after trial.

## Conclusion

State v. Burke ex rel. County of La Paz holds that, after Arizona’s 2012 amendment to Rule 702, a trial court must make an on-the-record reliability determination before admitting proposed testimony about false memory syndrome, and the proponent must supply enough supporting material to allow that determination; because the superior court admitted the testimony without that required analysis, the Court of Appeals granted special-action relief and ordered the court to conduct the proper Rule 702 review.


State v. Burke ex rel. County of La Paz, 2012 WL 1470103 (2012)