Latest from Dauber's Department: Nebraska Supreme Court (J. Miller-Lerman) holds that discarded Frye "general acceptance" test is good enough for evidence it is accustomed to receiving, in this case firearms evidence State v. Mason, 271 Neb. 16 February 3, 2006. No. S-04-852. Defendant challenged admission of expert testimony regarding firearms and ballistics evidence under Daubert/Schafersman. the Nebraska Supreme Court (J. Miller-Lerman) holds that firearms/ ballistics evidence to which there has been no recent challenge to its scientific validity meets Daubert standards by its general acceptance. The trial court is the gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion. This gatekeeping function entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue. The party objecting to expert evidence must show that its basis is questionable, then "[o]nce a party opposing an expert's testimony has sufficiently called into question 'the testimony's factual basis, data, principles, [or] methods, or their application . . . the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline.'" Zimmerman v. Powell, 268 Neb. 422, 429, 684 N.W.2d 1, 8 (2004) (quoting Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001)).

The type of ballistics and firearms testimony that Bohaty presented in this case was not novel and is fairly routine in cases involving the use of firearms. Therefore, the Daubert analysis did not need to be as extensive as it might have been if the testimony involved more complicated, less routine methods of testing...In a case involving a more novel methodology or a methodology which had been more significantly called into question, a more extensive inquiry and more extensive analysis and reasoning would have been indicated. Considering the nature of the expert testimony involved in this case, we conclude that the court's inquiry, analysis, and ruling with respect to Mason's challenge were adequate and that the court did not abuse its discretion in admitting Bohaty's expert testimony