eCases

 (citations omitted).
4 What had been North Carolina’s Rule 702 became Rule 702(a) in 1995, when the
General Assembly added subsections 702(b) through (h). Act of June 20, 1995, ch. 309, sec. 1,
1995 N.C. Sess. Laws (1995 Reg. Sess.) 611, 611-13 (codified at N.C.G.S. § 8C-1, Rule 702
(2015)).
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Opinion of the Court
Though this test “share[s] obvious similarities with the principles underlying
Daubert, application of the North Carolina approach is decidedly less mechanistic
and rigorous than the ‘exacting standards of reliability’ demanded by the federal
approach.” Id. at 464,

597 S.E.2d at 690

 (quoting Weisgram,

528 U.S. at 455

). This
Court was concerned that the federal “gatekeeping” approach required judges to
evaluate “the substantive merits of the scientific or technical theories undergirding
an expert’s opinion.”

Id. at 464

597 S.E.2d at 690

. We found this gatekeeping role
especially troubling when pretrial Daubert proceedings became “case-dispositive,” as
parties could use them to exclude expert testimony necessary to prove an element of
a claim and thereby “bootstrap motions for summary judgment that otherwise would
not likely succeed.”

Id. at 467

597 S.E.2d at 691

. North Carolina law, we concluded,
favored liberal admission of expert witness testimony and left the role of determining
its weight to the jury.

Id. at 468-69

597 S.E.2d at 692-93

.
In 2011, the General Assembly added language to North Carolina’s Rule 702(a)
that was virtually identical to the 2000 amendment to the federal rule. Our rule now
reads in relevant part:
(a)    If scientific, technical or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion, or
otherwise, if all of the following apply:
(1)   The testimony is based upon sufficient
facts or data.
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(2)    The testimony is the product of reliable
principles and methods.
(3)    The witness has applied the principles
and methods reliably to the facts of the
case.
Act of June 17, 2011, ch. 283, sec. 1.3, 2011 N.C. Sess. Laws (2011 Reg. Sess.) 1048,
1049 (codified at N.C.G.S. § 8C-1, Rule 702(a)) (new text in italics).
When we interpret the North Carolina Rules of Evidence, as when we interpret
other statutes, “[t]he cardinal principle . . . is to discern the intent of the legislature.”
State v. Jones,

359 N.C. 832

, 835,

616 S.E.2d 496

, 498 (2005). In determining this
intent, “we presume that the legislature acted with full knowledge of prior and
existing law and its construction by the courts.” State ex rel. Cobey v. Simpson,

333 N.C. 81

, 90,

423 S.E.2d 759

, 763 (1992). And when the General Assembly adopts
language or statutes from another jurisdiction, “constructions placed on such
language or statutes are presumed to be adopted as well.” Sheffield v. Consol. Foods
Corp.,

302 N.C. 403

, 427,

276 S.E.2d 422

, 437 (1981). The commentary to the North
Carolina Rules of Evidence supports this presumption in the specific context of the
Rules:
A substantial body of law construing [the Federal Rules of
Evidence] exists and should be looked to by the courts for
enlightenment and guidance in ascertaining the intent of
the General Assembly in adopting these rules. Uniformity
of evidence rulings in the courts of this State and federal
courts is one motivating factor in adopting these rules and
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STATE V. MCGRADY
Opinion of the Court
should be a goal of our courts in construing those rules that
are identical.
N.C. R. Evid. 102 commentary.5
By adopting virtually the same language from the federal rule into the North
Carolina rule, the General Assembly thus adopted the meaning of the federal rule as
well. In other words, North Carolina’s Rule 702(a) now incorporates the standard
from the Daubert line of cases. Whatever this Court’s reservations about the Daubert
standard were, see Howerton,

358 N.C. at 464-69

597 S.E.2d at 690-93

, the General
Assembly has made it clear that North Carolina is now a Daubert state.
This is not to say, however, that the 2011 amendment to Rule 702(a) abrogated
all North Carolina precedents interpreting that rule. Our previous cases are still
good law if they do not conflict with the Daubert standard. Nor does this mean that
the interpretation of Rule 702(a) is now a federal question. The proper interpretation
of Rule 702(a) remains an issue of state law, and any future judicial gloss by the
federal courts on the meaning of Federal Rule 702 will not dictate the meaning of the
North Carolina rule. Federal case law that continues to refine the Daubert standard
may, of course, be helpful. But unlike Daubert, Joiner, and Kumho—all of which were
5 While the commentaries printed with the Rules of Evidence do not have the force of
law, we have repeatedly given them “substantial weight in our efforts to comprehend
legislative intent.” State v. Hosey,

318 N.C. 330

, 338 n.2,

348 S.E.2d 805

, 810 n.2 (1986);
accord State v. Bogle,

324 N.C. 190

, 202-03 & 203 n.5,

376 S.E.2d 745

, 752 & n.5 (1989); State
v. Chul Yun Kim,

318 N.C. 614

, 620 & n.3,

350 S.E.2d 347

, 351 & n.3 (1986).
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Opinion of the Court
decided before the General Assembly amended North Carolina’s rule in 2011—this
case law could not have been incorporated into the amended state rule.
Here, both parties seem to agree that the 2011 amendment to North Carolina’s
Rule 702(a) incorporated the standard announced in Daubert itself.               Defendant,
however, seems to overlook the fact that the 2000 amendment to the federal rule
codified more than Daubert alone. As explained above, the federal rule’s amended
language codified not only Daubert, but also Joiner and Kumho. To determine the
proper application of North Carolina’s Rule 702(a), then, we must look to the text of
the rule, to all three of these United States Supreme Court cases, and also to our
existing precedents, as long as those precedents do not conflict with the rule’s
amended text or with Daubert, Joiner, or Kumho.
Rule 702(a) has three main parts, and expert testimony must satisfy each to
be admissible.6 First, the area of proposed testimony must be based on “scientific,
technical or other specialized knowledge” that “will assist the trier of fact to
understand the evidence or to determine a fact in issue.” N.C. R. Evid. 702(a). This
is the relevance inquiry discussed in both Daubert and Howerton. See Daubert,

509 U.S. at 591

; Howerton,

597 S.E.2d at 688-89

. As with any
evidence, the testimony must meet the minimum standard for logical relevance that
6 For simplicity’s sake, we address these three parts in the order in which they appear
in the rule. That is not to say, however, that a trial court must necessarily do the same.
Cf. Howerton,

358 N.C. at 458-62

597 S.E.2d at 686-89

 (discussing reliability first, then
qualifications, and then relevance).
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Opinion of the Court
Rule 401 establishes. See Howerton,

 (“[W]e defer
to the traditional definition of relevancy set forth in the North Carolina Rules of
Evidence . . . .” (citing N.C.G.S. § 8C-1, Rule 401 (2003))). In other words, the
testimony must “relate to [an] issue in the case.” Daubert,

509 U.S. at 591

 (quoting
3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 702[02], at 702-18
(1988)). But relevance means something more for expert testimony. In order to
“assist the trier of fact,” N.C. R. Evid. 702(a), expert testimony must provide insight
beyond the conclusions that jurors can readily draw from their ordinary experience.
An area of inquiry need not be completely incomprehensible to lay jurors without
expert assistance before expert testimony becomes admissible. To be helpful, though,
that testimony must do more than invite the jury to “substitut[e] [the expert’s]
judgment of the meaning of the facts of the case” for its own. Burrell v. Sparkkles
Reconstr. Co.,

189 N.C. App. 104

, 114,

657 S.E.2d 712

, 719, disc. rev. denied,

362 N.C. 469

665 S.E.2d 738

 (2008); accord N.C. R. Evid. 704 commentary (“These provisions
[including Rule 702] afford ample assurance[s] against the admission of opinions
which would merely tell the jury what result to reach . . . .” (quoting Fed. R. Evid. 704
advisory committee’s note)).
Second, the witness must be “qualified as an expert by knowledge, skill,
experience, training, or education.” N.C. R. Evid. 702(a).     This portion of the rule
focuses on the witness’s competence to testify as an expert in the field of his or her
proposed testimony. Expertise can come from practical experience as much as from
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Opinion of the Court
academic training. Howerton,

. Whatever the
source of the witness’s knowledge, the question remains the same: Does the witness
have enough expertise to be in a better position than the trier of fact to have an
opinion on the subject?

Id. at 461

. The rule does not mandate that
the witness always have a particular degree or certification, or practice a particular
profession.

Id. at 461-62

. But this does not mean that the trial
court cannot screen the evidence based on the expert’s qualifications. Cf. Daubert,

509 U.S. at 589

.      In some cases, degrees or certifications may play a role in
determining the witness’s qualifications, depending on the content of the witness’s
testimony and the field of the witness’s purported expertise. As is true with respect
to other aspects of Rule 702(a), the trial court has the discretion to determine whether
the witness is sufficiently qualified to testify in that field.
Third, the testimony must meet the three-pronged reliability test that is new
to the amended rule: “(1) The testimony [must be] based upon sufficient facts or data.
(2) The testimony [must be] the product of reliable principles and methods. (3) The
witness [must have] applied the principles and methods reliably to the facts of the
case.”    N.C. R. Evid. 702(a)(1)-(3).    These three prongs together constitute the
reliability inquiry discussed in Daubert, Joiner, and Kumho. The primary focus of
the inquiry is on the reliability of the witness’s principles and methodology, Joiner,

522 U.S. at 146

, “not on the conclusions that they generate,” Daubert,

509 U.S. at 595

.     However, “conclusions and methodology are not entirely distinct from one
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STATE V. MCGRADY
Opinion of the Court
another,” and when a trial court “conclude[s] that there is simply too great an
analytical gap between the data and the opinion proffered,” the court is not required
“to admit opinion evidence that is connected to existing data only by the ipse dixit of
the expert.” Joiner,

522 U.S. at 146

.
The precise nature of the reliability inquiry will vary from case to case
depending on the nature of the proposed testimony. In each case, the trial court has
discretion in determining how to address the three prongs of the reliability test. See
Kumho,

526 U.S. at 152-53

. The trial court “must have the same kind of latitude in
deciding how to test an expert’s reliability . . . as it enjoys when it decides whether
that expert’s relevant testimony is reliable.”

Id. at 152

. Many previous cases, both
federal and state, articulate particular factors that may indicate whether or not
expert testimony is reliable. In its discretion, the trial court should use those factors
that it believes will best help it determine whether the testimony is reliable in the
three ways described in the text of Rule 702(a)(1) to (a)(3).
In the context of scientific testimony, Daubert articulated five factors from a
nonexhaustive list that can have a bearing on reliability: (1) “whether a theory or
technique . . . can be (and has been) tested”; (2) “whether the theory or technique has
been subjected to peer review and publication”; (3) the theory or technique’s “known
or potential rate of error”; (4) “the existence and maintenance of standards controlling
the technique’s operation”; and (5) whether the theory or technique has achieved
“general acceptance” in its field. Daubert,

509 U.S. at 593-94

. When a trial court
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STATE V. MCGRADY
Opinion of the Court
considers testimony based on “technical or other specialized knowledge,” N.C. R.
Evid. 702(a), it should likewise focus on the reliability of that testimony, Kumho,

526 U.S. at 147-49

. The trial court should consider the factors articulated in Daubert
when “they are reasonable measures of the reliability of expert testimony.”

Id. at 152

. Those factors are part of a “flexible” inquiry, Daubert,

509 U.S. at 594

, so they
do not form “a definitive checklist or test,”

id. at 593

. And the trial court is free to
consider other factors that may help assess reliability given “the nature of the issue,
the expert’s particular expertise, and the subject of his testimony.” Kumho,

526 U.S. at 150

.
The federal courts have articulated additional reliability factors that may be
helpful in certain cases, including:
(1)    Whether experts are proposing to testify about
matters growing naturally and directly out of
research they have conducted independent of the
litigation, or whether they have developed their
opinions expressly for purposes of testifying.
(2)    Whether the expert has unjustifiably extrapolated
from an accepted premise to an unfounded
conclusion.
(3)    Whether the expert has adequately accounted for
obvious alternative explanations.
(4)    Whether the expert is being as careful as he would
be in his regular professional work outside his paid
litigation consulting.
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Opinion of the Court
(5)   Whether the field of expertise claimed by the expert
is known to reach reliable results for the type of
opinion the expert would give.
Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (citations and
quotation marks omitted). In some cases, one or more of the factors that we listed in
Howerton may be useful as well. See Howerton,

358 N.C. at 460

597 S.E.2d at 687

(listing four factors: use of established techniques, expert’s professional background
in the field, use of visual aids to help the jury evaluate the expert’s opinions, and
independent research conducted by the expert).
Whatever the type of expert testimony, the trial court must assess the
reliability of the testimony to ensure that it complies with the three-pronged test in
Rule 702(a)(1) to (a)(3). The court has discretion to consider any of the particular
factors articulated in previous cases, or other factors it may identify, that are
reasonable measures of whether the expert’s testimony is based on sufficient facts or
data, whether the testimony is the product of reliable principles and methods, and
whether the expert has reliably applied those principles and methods in that case.
See Kumho,

526 U.S. at 150-53

.
This three-step framework—namely, evaluating qualifications, relevance, and
reliability—is not new to North Carolina law. We recognized the same steps in
Howerton. See

358 N.C. at 458

. The 2011 amendment to Rule
702(a) did not change the basic structure of the inquiry under that rule. But the
amendment did change the level of rigor that our courts must use to scrutinize expert
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STATE V. MCGRADY
Opinion of the Court
testimony before admitting it. Cf.

id. at 464

597 S.E.2d at 690

 (noting that the then-
existing North Carolina approach was “decidedly less . . . rigorous” than the Daubert
approach). A rule governing the admission of expert testimony necessarily strikes a
balance between competing concerns since the testimony “can be both powerful and
quite misleading” to a jury “because of the difficulty in evaluating it.” Daubert,

509 U.S. at 595

 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is
Sound; It Should Not Be Amended,

138 F.R.D. 631

, 632 (1991)). The interpretation
we gave to Rule 702(a) in Howerton struck one such balance; the Daubert standard,
now incorporated into North Carolina law, strikes another.
Whether expert witness testimony is admissible under Rule 702(a) is a
preliminary question that a trial judge decides pursuant to Rule 104(a).
N.C.G.S. § 8C-1, Rule 104(a) (2015); Howerton,

358 N.C. at 458

;
see also Daubert,

509 U.S. at

592 n.10. In answering this preliminary question, the
trial judge “is not bound by the rules of evidence except those with respect to
privileges.” N.C. R. Evid. 104(a). To the extent that factual findings are necessary
to answer this question, the trial judge acts as the trier of fact. N.C. R. Evid. 104(a)
commentary. The court must find these facts by the greater weight of the evidence.
See Daubert,

509 U.S. at

592 n.10 (“These matters should be established by a
preponderance of proof.” (citing Bourjaily v. United States,

483 U.S. 171

, 175-76
(1987) (using the term “preponderance of the evidence” synonymously with
“preponderance of proof”))); Cincinnati Butchers Supply Co. v. Conoly,

204 N.C. 677

,
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Opinion of the Court
679,

169 S.E. 415

, 416 (1933) (equating “preponderance of the evidence” with “greater
weight of the evidence”). As with other findings of fact, these findings will be binding
on appeal unless there is no evidence to support them. State v. King,

366 N.C. 68

, 75,

733 S.E.2d 535

, 540 (2012).
The trial court then concludes, based on these findings, whether the proffered
expert testimony meets Rule 702(a)’s requirements of qualification, relevance, and
reliability. This ruling “will not be reversed on appeal absent a showing of abuse of
discretion.” Howerton,

358 N.C. at 458

. And “[a] trial court may
be reversed for abuse of discretion only upon a showing that its ruling was manifestly
unsupported by reason and could not have been the result of a reasoned decision.”
State v. Riddick,

315 N.C. 749

, 756,

340 S.E.2d 55

, 59 (1986). The standard of review
remains the same whether the trial court has admitted or excluded the testimony—
even when the exclusion of expert testimony results in summary judgment and
thereby becomes “outcome determinative.” Joiner,

522 U.S. at 142-43

.
Rule 702(a), as amended in 2011, does not mandate particular “procedural
requirements for exercising the trial court’s gatekeeping function over expert
testimony.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. The
trial court has the discretion to determine “whether or when special briefing or other
proceedings are needed to investigate reliability.” Kumho,

526 U.S. at 152

. A trial
court may elect to order submission of affidavits, hear voir dire testimony, or conduct
an in limine hearing. See Fed. R. Evid. 702 advisory committee’s note to 2000
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Opinion of the Court
amendment. More complex or novel areas of expertise may require one or more of
these procedures. See Kumho,

526 U.S. at 152

. In simpler cases, however, the area
of testimony may be sufficiently common or easily understood that the testimony’s
foundation can be laid with a few questions in the presence of the jury. See

id.

The
court should use a procedure that, given the circumstances of the case, will “secure
fairness in administration, elimination of unjustifiable expense and delay, and
promotion of growth and development of the law of evidence to the end that the truth
may be ascertained and proceedings justly determined.” N.C.G.S. § 8C-1, Rule 102(a)
(2015).
III
Using this analytical framework, we now address whether the trial court
abused its discretion in excluding Mr. Cloutier’s proposed expert witness testimony
under Rule 702(a).
Mr. Cloutier received a bachelor’s degree in criminal justice from North
Carolina Wesleyan College and also graduated from the FBI National Academy in
Quantico, Virginia. He worked as an officer of the Goldsboro Police Department for
almost sixteen years, retiring as a captain. He then spent about eleven years at the
North Carolina Justice Academy, working as an instructor and school director. Mr.
Cloutier developed and taught courses there in areas such as “subject control and
arrest techniques” and the use of lethal and non-lethal force. After retiring from the
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Academy in 2001 and through the time of the trial in this case, he provided expert
testimony about the use of force and crime scene investigation, and also trained
civilians in martial arts and some of the “legal aspects of [the] use of force.”
Mr. Cloutier intended to offer expert testimony on three principal topics:
(1) that, based on the “pre-attack cues” and “use of force variables” present in the
interaction between defendant and Mr. Shore, defendant’s use of force was a
reasonable response to an imminent, deadly assault that defendant perceived;
(2) that defendant’s actions and testimony are consistent with those of someone
experiencing the sympathetic nervous system’s “fight or flight” response; and (3) that
reaction times can explain why some of defendant’s defensive shots hit Mr. Shore in
the back. Defense counsel encouraged this Court at oral argument to focus on the
reaction time testimony, conceding that the trial court was probably correct to exclude
much of Mr. Cloutier’s other testimony either because it was unhelpful to the jury or
because Mr. Cloutier was not qualified to give it. We agree with this admission, but
need not rely on it to conclude that the trial court acted within its discretion in
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excluding all of Mr. Cloutier’s expert testimony under Rule 702(a).7 We address each
portion of Mr. Cloutier’s testimony in turn.8
First, the trial court did not abuse its discretion when it concluded that Mr.
Cloutier’s testimony about “pre-attack cues” and “use of force variables” would not
assist the jury. In his expert report, Mr. Cloutier stated that pre-attack cues are
actions “exhibited by an aggressor as a possible precursor to an actual attack.”
According to the report, pre-attack cues include “actions consistent with an assault,
actions consistent with retrieving a weapon, threats, display of a weapon,
employment of a weapon, profanity and innumerable others.” Relatedly, Mr. Cloutier
testified at voir dire that the phrase “use of force variables” refers to additional
circumstances and events that influence a person’s decision about the type and degree
of force necessary to repel a perceived threat. Mr. Cloutier’s expert report indicated
that use of force variables include the age, gender, size, and number of individuals
involved; the number and type of weapons present; and environmental factors.
The trial court concluded that Mr. Cloutier’s testimony about pre-attack cues
and use of force variables would not assist the jury because these matters were within
7 In addition to the Rule 702(a) issue, the parties disagree on whether the trial court
also properly excluded Mr. Cloutier’s testimony under Rule 403, and whether defendant has
properly preserved his objection to that ruling. Because the testimony was properly excluded
under Rule 702(a), however, the issues related to Rule 403 are moot.
8Because expert testimony is inadmissible if it fails to meet any part of the Rule 702(a)
standard, we need not address the entire three-part test for each portion of Mr. Cloutier’s
testimony.
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the jurors’ common knowledge. This ruling was not an abuse of discretion. The
factors that Mr. Cloutier cited and relied on to conclude that defendant reasonably
responded to an imminent, deadly threat are the same kinds of things that lay jurors
would be aware of, and would naturally consider, as they drew their own conclusions.
Mr. Cloutier’s own expert report stated that, even without formal training,
individuals recognize and respond to these cues and variables when assessing a
potential threat. And if these cues and variables are logically relevant at all, they
are relevant precisely because they are within the understanding of a layperson.
Though defendant served in the military, he did not testify that he relied on any
specialized training in threat assessment when he evaluated the threat that Mr.
Shore posed to his life and the life of his son. Nor was there any evidence that he
relied on anything other than common experience and instinct when he did so. Jurors
possess this experience and instinct as well, which is exactly why they are tasked
with deciding whether a defendant has acted in self-defense. In this instance,
therefore, it was reasonable for the trial court to conclude that expert testimony
would not assist the jury as required by Rule 702(a).
Next, the trial court acted within its discretion in concluding that Mr. Cloutier
was not qualified to offer expert testimony on the stress responses of the sympathetic
nervous system. Mr. Cloutier’s expert report stated that instinctive survival response
to fear “can activate the body’s sympathetic nervous system and create a condition
commonly referred [to] as the ‘fight or flight’ response.” Mr. Cloutier also indicated
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that defendant’s perception of an impending attack would cause a surge of adrenalin
in the body to “activate instinctive, powerful and uncontrollable survival responses
as a means to prevent or minimize serious injury or death.” This nervous system
response, Mr. Cloutier maintained, causes “perceptual narrowing,” which focuses a
person’s attention on the threat and leads to a loss of peripheral vision and other
changes in visual perception. According to Mr. Cloutier, the nervous system’s
response to a threat can also cause “fragmented memory,” or an “inability to recall
specific events” related to the threatening encounter. Defendant testified at trial that
he did not remember the number of shots that he fired at Mr. Shore. He indicated
that, during his encounter with Mr. Shore, all of his attention was focused on the
threat. Mr. Cloutier’s testimony on stress responses was therefore intended to show
that the state of defendant’s memory and defendant’s description of what he
experienced were consistent with having perceived a threat to his life and the life of
his son.
The trial court excluded this portion of Mr. Cloutier’s testimony because it
concluded that he was not “qualified to talk about how something affects the
sympathetic nervous system.” Mr. Cloutier testified at voir dire that he was not a
medical doctor but that he had studied “the basics” of the brain in general psychology
courses in college. He also testified that he had read articles and been trained by
medical doctors on how adrenalin affects the body, had personally experienced
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perceptual narrowing, and had trained numerous police officers and civilians on how
to deal with these stress responses.
Though Rule 702(a) does not create an across-the-board requirement for
academic training or credentials, see Howerton,