¶1concurring specially.
¶2[¶ 37] I concur in the result reached in Part II and join the majority in the remainder of its opinion. I write separately because of my belief it is time we consider adopting Daubert and its progeny as the law in North Dakota.
¶3[¶ 38] I agree with that portion of Part II rejecting Hernandez’s contention that the supremacy clause of United States Constitution requires this Court to follow Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) when determining ad*462missibility of expert testimony. However, I disagree with the remainder of the majority’s opinion regarding Daubertand would accept Hernandez’s invitation to adopt the federal court’s rationale and analysis for determining admissibility of expert testimony.
¶4[¶ 89] “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. The question of what constitutes “admissible evidence” is determined by the court, in reliance on the rules of evidence. N.D.R.Ev. 104(a). The rules of evidence, in turn, exist to provide a predictable groundwork for admission of evidence, presentation of witnesses, and the conduct of trials. N.D.R.Ev. 101 and 102.
¶5[¶ 40] The problem developing in North Dakota is that the handling of expert testimony is tending toward anything but predictable because, as explained below, this Court, the district courts, and the practicing bar appear adrift with uncertainty whether proceedings are controlled by the Frye test, the plain reading of N.D.R.Ev. 104(a) and 702, Daubert, Dau-bert and Kumho, or any combination of the above.
¶6[¶ 41] Admission of expert testimony in North Dakota courts is fundamentally governed by N.D.R.Ev. 702, which provides:
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.
¶7Rule 702 is read in conjunction with N.D.R.Ev. 104(a), which requires that the court address “[p]reliminary questions concerning the qualification of a person to be a witness.”
¶8[¶ 42] The majority refuses to adopt current federal analysis for expert testimony, instead stating in paragraph 6, “This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez’s invitation to adopt Daubertby judicial decision.”
¶9[¶ 48] I am troubled by the majority’s conclusion for at least two reasons. First, the version of Fed.R.Evid. 702 considered in Daubertand Kumho was identical to North Dakota’s current Rule 702. See Daubert, 509 U.S. at 588, 113 S.Ct. 2786 (“Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides: ‘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.’ ”) and Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (“Rule 702 itself says: ‘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.’ ”).
¶10[¶ 44] Rule 702, Fed.R.Evid., was amended after Daubert, and, in fact, in response to Daubert. See Fed.R.Evid. 702 advisory committee’s note. However, the 2000 amendments to Fed.R.Evid. 702 cannot be used to cloud the fact it was Rule 702 itself — and not the Daubertdecision — • that changed the federal analytical approach to admission of expert testimony. *463Daubert, 509 U.S. at 589 and 589 n. 6, 113 S.Ct. 2786{Frye test was “displaced” and “superseded” by Rules of Evidence). This conclusion was acknowledged by our own Court in City of Fargo v. McLaughlin, 512 N.W.2d 700, 705 n. 2 (N.D.1994) (“The United States Supreme Court has recently held that the Frye test, requiring general acceptance within the relevant scientific community, has been superseded by FREv 702.”). From this, I conclude the changes embodied in Daubertand Kumhowere the result of rules of evidence that were identical to North Dakota’s rules. I am therefore further compelled to conclude that the decision whether to adopt Daubertand its progeny is more appropriately a judicial function for this Court than an assignment to the Joint Procedures Committee.
¶11[¶45] Secondly, this Court’s failure to follow the federal analysis departs from our long-standing and often stated practice that “we are guided by and give deference to” federal case law interpreting the federal rule when we construe our rule. Gruebele v. Gruebele, 338 N.W.2d 805, 811 n. 5 (N.D.1983). See Malchose v. Kalfell, 2003 ND 75, ¶ 5, 664 N.W.2d 508 (“Because N.D.R.Ev. 901 is taken from the Federal Rules of Evidence, with minor revision, we also consider federal cases to help interpret our rule.”) and State v. Forsland, 326 N.W.2d 688, 692 (N.D.1982) (“Rule 404(b) was adopted from the Federal Rules of Evidence, and as such the construction and interpretation placed upon the rule by the federal authorities are entitled to appreciable weight.”).
¶12[¶ 46] Given the common text and origin of North Dakota’s Rule 702 and the version of Federal Rule 702 applied in Daubertand Kumho, I see no reasonable basis for this Court’s reluctance to at least consider, if not embrace, the federal interpretation.
¶13[¶ 47] I also have trouble with the majority’s inflexibility on this issue because of this Court’s evidentiary rules and opinions that contain or have incorporated, in whole or in part, significant portions of the Dau-bert and Kumhodoctrines. The DaubertCourt focused on the admissibility of scientific expert testimony and held that such testimony is admissible only if it is both relevant and reliable. 509 U.S. at 589, 113 S.Ct. 2786. It further held that the federal rules of evidence “assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597,113 S.Ct. 2786.
¶14[¶ 48] In Kumho, the Court extended Daubertto include all expert testimony, holding, “In Daubert, this Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ‘ensure that any and all scientific testimony ... is not only relevant, but reliable.’ The initial question before us is whether this basic gatekeeping obligation applies only to ‘scientific’ testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony.” Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (internal citations omitted).
¶15[¶49] Rule 104(a), N.D.R.Ev., imposes a “gatekeeper” function much like that discussed in Daubertand Kumho. Not surprisingly, opinions from this Court recognize as much. See State v. Zimmerman, 516 N.W.2d 638, 642 (N.D.1994) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”) and State v. Miller, 466 N.W.2d 128, 131 (N.D.1991) (“The trial court controls admission and exclusion of evidence.”).
¶16[¶ 50] The North Dakota Rules of Evidence and cases from this Court also require as a prerequisite to admissibility that an expert’s testimony be both relevant and *464reliable. See N.D.R.Ev. 402 (“All relevant evidence is admissible.... Evidence which is not relevant is not admissible.”) and State v. Burke, 2000 ND 25, ¶ 18, 606 N.W.2d 108 (“DNA test results may be inadmissible if the means used in the particular case were not sufficiently reliable”).
¶17[¶ 51] My reading of both our rules of evidence and these cases suggests that this Court should act on calls to decide whether North Dakota will adopt, in whole or in part, the so-called Daubertand Kumhodoctrine. Our failure to do so leaves a void that is not in keeping with Rule 102, N.D.R.Ev., requiring construction of the rules of evidence “to 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.”
¶18[¶ 52] Daniel J. Crothers