SB 13: "An Act relating to the admissibility of evidence and testimony in criminal and civil proceedings; directing the admissibility into evidence of deoxyribonucleic acid (DNA) profiles in civil and criminal proceedings; amending Rules 702(a) and 703 of the Alaska Rules of Evidence to modify the rule relating to the basis or foundation for the admissibility of expert opinion testimony that is based on scientific evidence; and amending Rules 401, 403, and 705 of the Alaska Rules of Evidence."
00SENATE BILL NO. 13 01 "An Act relating to the admissibility of evidence and testimony in criminal and 02 civil proceedings; directing the admissibility into evidence of deoxyribonucleic acid 03 (DNA) profiles in civil and criminal proceedings; amending Rules 702(a) and 703 04 of the Alaska Rules of Evidence to modify the rule relating to the basis or 05 foundation for the admissibility of expert opinion testimony that is based on 06 scientific evidence; and amending Rules 401, 403, and 705 of the Alaska Rules 07 of Evidence." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE. (a) The 10 legislature finds that 11 (1) scientific evidence provides an increasingly critical source of information 12 in civil and criminal litigation; 13 (2) court decisions guiding the admissibility of scientific evidence in the state 14 courts impose a requirement on the introduction of expert scientific testimony that condition
01 the introduction of that testimony to a degree of its validation within the community, that is, 02 to its general acceptance by experts in the relevant scientific field; 03 (3) under the court decisions, trial courts are empowered to evaluate the quality 04 of expert witnesses' opinions and to exclude opinions that have not achieved general 05 acceptance in the scientific community; 06 (4) the ability of a trial court to exclude opinion evidence that has not achieved 07 general acceptance in the scientific community may prohibit introduction and consideration 08 of evidence and testimony based on experimental scientific information that could be useful 09 to the trier of fact; and 10 (5) to better assure that relevant evidence based on emerging scientific 11 techniques and processes of debatable reliability may be considered, the "general acceptance" 12 principle for admissibility of scientific testimony should be replaced and a more flexible 13 approach to the use of opinion testimony should be adopted. 14 (b) In amending Alaska Rules of Evidence 702(a) and 703, enacted by secs. 4 and 5 15 of this Act, it is the purpose of the legislature to change the appropriate standard for the 16 admissibility of scientific evidence in civil and criminal proceedings. The legislature's 17 amendment of this rule would eliminate the principle of "general acceptance" underlying 18 scientific evidence as a precondition to the admissibility of scientific evidence in a criminal 19 or civil action, a principle first enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 20 1923) and adopted for the courts of this state in Pulakis v. State, 476 P.2d 474, 478 (Alaska 21 1970). In its place, the legislature opts to substitute the comparable rule applicable to the 22 introduction of scientific evidence in cases in the federal courts. That standard was announced 23 in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. --, 125 L.Ed.2d 469, 113 S.Ct. 24 2786 (1993). Under the Daubert standard, the reliability of scientific evidence is to be 25 determined based on the evidence's scientific validity without reference to the quality of 26 expert opinion, and without the qualifying condition that an expert opinion that has not 27 achieved general acceptance in the scientific community must be excluded. 28 * Sec. 2. AS 09.25 is amended by adding a new section to read: 29 Sec. 09.25.300. ADMISSIBILITY OF DNA PROFILES. (a) In a civil action 30 or proceeding, the evidence of a DNA profile is admissible to prove or disprove the 31 identity of a person.
01 (b) A party seeking to introduce the evidence of a DNA profile shall 02 (1) notify all other parties in writing, at least 45 days before the 03 commencement of the action or proceeding, of the party's intention to introduce the 04 evidence; and 05 (2) provide all other parties, at least 30 days before commencement of 06 the action or proceeding, copies of the DNA profiles and the report or statement of the 07 profile to be introduced. 08 (c) If the notice required by (b) of this section is not timely provided and a 09 party attempts to introduce the evidence, the court may, in its discretion, either allow 10 the opposing party a continuance or, under appropriate circumstances, bar the party 11 from presenting the evidence. 12 (d) If a party to whom notice is given under (b) of this section intends to 13 object to the admissibility of the DNA profile, the party shall give written notice of 14 the objection at least 10 days before commencement of the action or proceeding. 15 (e) In this section, 16 (1) "deoxyribonucleic acid" or "DNA" means the molecules in all 17 cellular forms that contain genetic information in a patterned chemical structure for 18 each individual; 19 (2) "DNA profile" means an analysis that uses the restriction fragment 20 length polymorphism analysis of deoxyribonucleic acid material in a human sample 21 of blood, semen, tissue, or other DNA-bearing cells resulting in the identification of 22 the individual's patterned chemical structure of genetic information. 23 * Sec. 3. AS 12.45 is amended by adding a new section to read: 24 Sec. 12.45.035. ADMISSIBILITY OF DNA PROFILES. (a) In a criminal 25 action or proceeding, the evidence of a DNA profile is admissible to prove or disprove 26 the identity of a person. 27 (b) A party seeking to introduce the evidence of a DNA profile shall 28 (1) notify all other parties in writing, at least 45 days before the 29 commencement of the action or proceeding, of the party's intention to introduce the 30 evidence; and 31 (2) provide all other parties, at least 30 days before commencement of
01 the action or proceeding, copies of the DNA profiles and the report or statement of the 02 profile to be introduced. 03 (c) If the notice required by (b) of this section is not timely provided and a 04 party attempts to introduce the evidence, the court may, in its discretion, either allow 05 the opposing party a continuance or, under appropriate circumstances, bar the party 06 from presenting the evidence. 07 (d) If a party to whom notice is given under (b) of this section intends to 08 object to the admissibility of the DNA profile, the party shall give written notice of 09 the objection at least 10 days before commencement of the action or proceeding. 10 (e) In this section, 11 (1) "deoxyribonucleic acid" or "DNA" means the molecules in all 12 cellular forms that contain genetic information in a patterned chemical structure for 13 each individual; 14 (2) "DNA profile" means an analysis that uses the restriction fragment 15 length polymorphism analysis of deoxyribonucleic acid material in a human sample 16 of blood, semen, tissue, or other DNA-bearing cells resulting in the identification of 17 the individual's patterned chemical structure of genetic information. 18 * Sec. 4. Rule 702(a), Alaska Rules of Evidence, is amended to read: 19 (a) If scientific, technical, or other specialized knowledge will assist the trier 20 of fact to understand the evidence or to determine a fact in issue, a witness qualified 21 as an expert by knowledge, skill, experience, training, or education, may testify thereto 22 in the form of an opinion or otherwise. In the case of expert testimony that is based 23 upon a scientific theory or technique, the court may not admit the evidence unless 24 the court finds that the theory or technique in question is scientifically valid for 25 the purpose for which it is applied. 26 * Sec. 5. Rule 703, Alaska Rules of Evidence, is amended to read: 27 Rule 703. BASIS OF OPINION TESTIMONY BY EXPERTS. The facts or 28 data in the particular case upon which an expert bases an opinion or inference 29 (1) may be those perceived by or made known to the expert at or 30 before the hearing; 31 (2) [. FACTS OR DATA] need not be admissible in evidence; and
01 (3) [BUT] must be of a type reasonably relied upon by experts in the 02 particular field in forming opinions or inferences upon the subject, but facts or data 03 that relate to and support an expert opinion or inference as to scientific 04 knowledge need not be sufficiently established to have become generally accepted 05 in the particular field to which the facts or the data belong. 06 * Sec. 6. AS 09.25.300, added by sec. 2 of this Act, and AS 12.45.035, added by sec. 3 07 of this Act, have the effect of amending 08 (1) Rules 401 and 403, Alaska Rules of Evidence, by determining that, when 09 offered in civil and criminal actions and proceedings, DNA profile evidence has probative 10 value and that its probative value outweighs the danger of unfair prejudice; 11 (2) Rule 705, Alaska Rules of Evidence, by eliminating a requirement that the 12 court require or allow antecedent expert testimony concerning the reliability of DNA profiles 13 as a method of identification prior to its receipt into evidence in the action or proceeding.