Arizona v. Bassett, 2014 WL 860802 (Ariz.App. Div. 1), March 2014

Appellant was charged with sexual exploitation of a minor, luring a minor for sexual purposes, and aggravated luring for sexual exploitation purposes. Appellant raised multiple issues on appeal, but only one, in my opinion, warrants any discussion here.

 Attack on Pediatric Expert Testimony to Verify Age of Children in CP Images: Appellant filed a motion for a Frye Hearing to determine the admissibility of two Government Pediatricians who were to testify about their opinions as to ages of children contained in suspected images of CP. *At the time of this trial, Arizona was a Frye jurisdiction, it became a Daubert jurisdiction in 2012. The argument was that the doctors were not qualified, though Defense had not requested or viewed the Doctors’ CVs yet. The State countered that because the expert testimony was based on the doctors’ individual training and experience as “medical doctors, pediatricians who specialize in children who have been abused,” their testimony was admissible pursuant to Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000), without the need for a Frye hearing. The judge ordered the Government to turn over the CV’s and denied the defense motion.

Argument: After viewing the CV’s, appellant conceded the Doctor’s were qualified, but maintains that the trial court nonetheless abused its discretion in admitting their testimony without holding a hearing because: (1) their testimony was not helpful to the jury; (2) their opinions were based on faulty scientific methods or principles; and (3) they did not properly apply accepted principles and methods. In particular, Bassett takes issue with the doctors’ use of the “Tanner stages of maturity” (“Tanner stages”)He contends that their use of the Tanner stages to arrive at their opinion of the ages “based purely on pictures without any physical examination” was insufficient to comport with Rule 702(b) of the Arizona Rules of Evidence.

Appellant’s final challenge to the expert testimony concerns the role the Tanner stages played in the doctors’ opinions that the children depicted were minors. Bassett cites several studies that take issue with the use of Tanner’s study or that report inaccuracies in  determining the chronological ages of subjects through the use of photographs. Bassett argues that this shows that the scientific principles or methods the doctors relied upon were not reliable, and were not reliably applied to the facts of this case.

Law: We review a superior court’s ruling on the admissibility of evidence for abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004). Not all expert testimony is necessarily subject to a Frye analysis and a Frye hearing is not automatically required each time scientific evidence is offered. State v. Speers, 209 Ariz. 125, 130, ¶ 18, 98 P.3d 560, 565 (App.2004). Our supreme court has stated that a Frye test applies only to opinion testimony that is based on “novel scientific principles, formulae, or procedures developed by others.” Logerquist, 196 Ariz. at 490, ¶ 62, 1 P.3d at 133. Frye is inapplicable if a witness reaches a conclusion “by inductive reasoning based on his or her own experience, observation, or research.” Id.

 Holding: Both Doctors testified that their assessments of the developmental age of the children pictured were based on their own personal training and research and extensive experience gathered in the course of treating thousands of children. Thus, the trial court did not abuse its discretion in declining to conduct a hearing.

As to Appellant’s arguments about the use of Tanner stage testimony, such arguments ultimately pertain more to the weight to be given the expert testimony rather than to its ultimate admissibility. See State v. Lucero, 207 Ariz. 301, 304–05, ¶ 14, 85 P.3d 1059, 1062–63 (App.2004) (stating that an argument attacking a scientific method goes to the weight of the evidence, not its admissibility). Furthermore, these arguments fail to recognize that both Coffman and Quinn acknowledged that the Tanner stages should not be used to determine a subject’s precise chronological age. Both doctors testified they had not used the study for that purpose, but that it was merely a research tool considered in forming their independent opinions, which were primarily based on years of pediatric experience.

Affirmed.

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