The state of South Dakota follows the Daubert test for the admissibility of expert witness testimony. State v. Lemler, 774 N.W.2d 272 (S.D. 2009). The purpose of this test is to ensure that expert testimony is reliable before it is admitted. Id. Under this test, courts should analyze: “(1) whether the theory or technique in question can be (and has been) tested, (2) whether it has been subjected to peer review and publication, (3) its known or potential error rate and the existence and maintenance of standards controlling its operation, and (4) whether it has attracted widespread acceptance within a relevant scientific community.” Id. This test is flexible, and courts should consider the factors and even if not all are met, if the court feels the evidence is relevant and reliable, the testimony will be admissible. Id. Additionally, the court should focus on the “principles and methodology” used by the expert and not on the conclusions the expert testifies to. Id.
Is Daubert or Frye used for expert witness testimony admissibility in South Dakota?
About the Author: Steve Babitsky
Steven Babitsky, Esq. is the President and founder of SEAK, Inc., the Expert Witness Training Company. He was a personal injury trial attorney for twenty years and is the former managing partner of the firm Kistin, Babitsky, Latimer & Beitman. Steve has helped expert witnesses and their attorneys prepare for deposition in a broad range of cases, including antitrust, patent, medical malpractice, wrongful death, computer forensics, and many others. He has trained the Federal Bureau of Investigation and the Federal Aviation Administration, and he has worked with numerous forensic and financial companies including Fortune 500 companies and has worked with numerous experts to help them expand and grow their practices. Mr. Babitsky is the co-author of the texts How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness, How to Be a Successful Expert Witness: SEAK’s A–Z Guide to Expert Witnessing, How to Write an Expert Witness Report, and How to Market Your Expert Witness Practice Evidence-Based Practices. Attorney Babitsky is the co-developer and trainer for the “How to Be an Effective Expert Witness” seminar and has been the seminar leader since 1990 for the Annual National Expert Witness and Litigation Conference. Mr. Babitsky trains hundreds of experts every year. He may be contacted at 508-548-9443 or firstname.lastname@example.org.