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by Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99
[Presented on January 19, 1999 at the State Supreme Court Justices Conference in Washington, D.C.]
Expert witnesses have become fixtures in today's courts. From fiber comparisons to economic projections to psychiatric evaluations, the range of offered expertise covers the span of human knowledge. Hardly a case of any consequence goes to trial without expert testimony of some kind. With such widespread use of expert testimony comes the inevitable question: what is the trial judge's role in overseeing the testimony of expert witnesses? Unlike lay witnesses, whose testimony a jury can evaluate based on their own common sense and experience, expert witnesses offer conclusions based on practices and knowledge beyond the ken of the average juror. As a consequence, testimony by unpoliced expert witnesses can have a potentially prejudicial effect on jurors, who may be inclined to believe the experts solely because of their "expert status." How is the trial judge to know whether the expert is merely speculating, or whether the evidence on which the expert bases his or her conclusions is sufficient to support the conclusion? Judges certainly prevent lay witnesses from speculating and are expected to exclude the testimony of a witness offering wholly speculative evidence. Why should this mandate be any different when the witness purports to be an expert?
If one accepts the proposition that the trial judge has a duty to exclude unreliable experts, a host of concerns inevitably follows. How is a trial judge to assess the scientific or technical adequacy of expert testimony if even a cursory understanding of the issues requires specialized training? Can anyone without such training fully understand the issues and come to a rational conclusion as to their validity? To what degree can the trial judge rely on the expert's own assertions about his or her qualifications? All of these concerns carry heavy weight for in many cases the trial judge is hardly a more qualified assessor of scientific credibility than the jury itself. In this introduction and the papers that follow it, we have laid out some possible answers to the myriad questions raised by judicial gatekeeping. This first paper provides an overview of federal admissibility jurisprudence and how five representative states: Florida, New Jersey, Rhode Island, New Mexico, and Ohio have followed differing approaches in addressing these gatekeeping concerns. The papers that follow it give a more generalized picture of the gatekeeping debate. Ultimately we hope that you find these materials helpful in formulating or fine-tuning your own approach to science in the courts.
TO DAUBERT: JUDICIAL GATEKEEPING IN THE FEDERAL COURTS
With the adoption of the Federal Rules of Evidence in 1975, courts, scholars and practitioners alike began to question whether Fryewould survive as the sole admissibility standard for expert testimony. Under the Federal Rules, judges were seemingly afforded more discretion in making admissibility determinations. Rule 104(a) assigns a judge the responsibility of making a preliminary determination on whether to allow a given expert to testify. Rule 702 goes on to guide this decision by requiring the judge to determine whether the admission of such testimony will assist the trier of fact to understand evidence or determine a fact at issue. Finally, Rule 403 suggests that the judge may exclude evidence if its likely prejudicial effect outweighs its probative value. The question was then to what degree would the arguably conservative Frye general acceptance standard survive in the wake of the presumably more liberal admissibility framework embodied in the new Federal Rules of Evidence.
The U.S. Supreme Court endeavored to answer the question of Frye's continued viability in Daubert v. Merrell Dow Pharmaceuticals, Inc.(3) In Daubert the Court held that Rule 702 did in fact supersede the Frye standard and enumerated a new standard to instruct judges on how to act as judicial gatekeepers. This new approach consisted of a two-pronged analysis of the testimony centering on the testimony's reliability and relevance. In determining reliability the court must engage in a, "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue."(4) In addition, when determining scientific reliability the trial judge should consider:
(1) whether the proffered knowledge can be or has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) the known or potential rate of error, and (4) whether the theory or technique has gained general acceptance in the relevant scientific discipline.(5)This non-exhaustive list of indicia of reliability relegated the Frye standard to one of a handful of guidelines that may be employed in ruling on admissibility. In conjunction with the newly ordained relevancy prong, the reliability criteria form a substantially more robust framework with which to analyze given scientific testimony. Choosing between these two approaches to admissibility has bedeviled states from coast to coast and produced a variety of approaches to gatekeeping.
Daubert and the Florida Rules of Evidence
With the adoption of the Florida Rules of Evidence, the continuing validity of this approach has been challenged. Significantly, Florida's own rule of evidence concerning expert testimony, Rule 90.702, is nearly indistinguishable from the Federal Rule of Evidence 702.(7) However, Florida courts have not interpreted Rule 90.702 as superseding Frye. Instead, Florida has continued to embrace the Frye general acceptance test, specifically rejecting Daubert's relevancy / reliability approach. This rejection occurred shortly after the Daubert decision in the context of a criminal trial in the case of Flanagan v. State.(8) In Flanagan, the prosecution sought to introduce profile testimony showing that the characteristics of home environments where child abuse commonly occurs were present in Flanagan's home.(9) This testimony was rejected when the court found after a review of the relevant academic literature that "sexual offender profile evidence is not generally accepted in the scientific community and does not meet the Frye test for admissibility."(10) In a footnote, the court dismisses the impact of Daubert without much explanation: "We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. [Citing Daubert] However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions. Stokes v. State, 548 So. 2d 188 (Fla. 1989)."(11)
In the more recent case of Brim v. State,(12) the Supreme Court of Florida once again reaffirmed its commitment to Frye, but did shed some light on why it had not chosen to adopt Daubert:
We start by emphasizing again that the Frye test is utilized in Florida to guarantee the reliability of new or novel scientific evidence. . . . Despite the federal adoption of a more lenient standard in Daubert, [citation omitted] we have maintained the higher standard of reliability as dictated by Frye. E.g., Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). (emphasis added)The Court considers the Daubert standard more lenient, but is it? Daubert does give the judge greater discretion to admit scientific evidence because there are criteria other than "general acceptance" that may be satisfied to successfully admit a particular piece of evidence. On the other hand, taken as a whole, Daubert may subject scientific evidence to stricter scrutiny by the judge, giving her more criteria on which to throw evidence out.(13)
How Does Frye Currently Work in Florida?
First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact at issue.(15)These four steps are the basic regime applying Florida statutory and case law. Some of the nuances underlying these steps have been fleshed out in cases subsequent to Ramirez.
General Acceptance Defined - And Blurred?
. . . scientific unanimity is not a precondition to a finding of general acceptance. (21) Instead, general acceptance in the scientific community can be established "if use of the technique is supported by a clear majority of the members of that community."(22) "Of course, the trial courts, in determining the general acceptance issue, must consider the quality, as well as the quantity, of the evidence supporting or opposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value . . . ."(23)Arguably, the Court does seem to blur the lines between the "general acceptance" standard and Daubert when it states that the quality (relevance / reliability) of the evidence must be considered along with the quantity (general acceptance) of scientists supporting the procedure.
Burden of Proof
Standard of Review
"Reasonable Reliability" - Hurd, Frye,
and Rule 56(2)
If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (a) based primarily on facts, data, or other expert opinion established by evidence at the trial and (b) within the scope of the special knowledge, skill, experience or training possessed by the witness.Implicit in section (b) of this rule was the proposition, long a part of New Jersey's common law of evidence, that the expert testimony and the scientific principles underlying it must be "reasonably reliable" in order to be admissible.(32) Such an interpretation rests on the fact that, "testimony cannot be within an expert's special knowledge or skill if the field from which the expert derives such knowledge and skill has not been deemed reliable by the courts."(33) In undertaking the reliability inquiry, New Jersey courts prior to and for some time after the adoption of Rule 56(2) were content to stay within the bounds of the Frye general acceptance test.(34) In 1981, however, the New Jersey Supreme Court slightly reformulated the basic Frye inquiry in State v. Hurd.(35)
The Hurd court indicated that along with proving that expert testimony had a sufficient factual basis to produce reasonably reliable information, the profferer of such testimony must show that the evidence would materially contribute to the ascertainment of the truth. General acceptance would no longer be dispositive on issues of admissibility; rather, the trial judge would be empowered to exclude otherwise "generally accepted" testimony if he or she felt that its admission would unfairly prejudice a party's case. In addition, by requiring that expert evidence assist the trier of fact in understanding the matter at hand the Hurd court "signaled the beginning of New Jersey's rejection of the general acceptance standard and sparked the attendant realization that evidence which fails to meet the general acceptance requirement may nonetheless help to inform a jury's decision."(36)
This broadened inquiry first enumerated in Hurd was incorporated in the amended version of New Jersey Rule of Evidence 56(2) that took effect on July 1, 1982 and read:
A witness qualified pursuant to Rule 19 as an expert by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.The amended version of rule 56(2) borrowed heavily from Federal Rule of Evidence 702 by incorporating the requirement that expert testimony assist the trier of fact. In addition, the amended rule liberalized the admission of expert testimony by allowing for admission of evidence based upon facts not adduced at trial. Similarly, under the post-Hurd formulation, the facts upon which testimony is based need not even be admissible.(37) This liberalizing trend in New Jersey law initiated in Hurd and codified in the amended version of Rule 56(2) was not readily apparent, however, until the landmark decision in State v. Kellly(38) came down in 1984.
State v. Kelly - Widening the Gate?
In effect, this Rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently; and (3) the witness must have sufficient expertise to offer the intended testimony.(39)In ruling that battered women's syndrome testimony met all three standards, the court indicated a willingness expand the bounds of admissibility and accept more novel scientific testimony. The court went on to indicate that in cases involving relatively new fields of inquiry where the reliability of the particular study has yet to be afforded judicial notice, there are three ways in which a proponent of such evidence can attempt to prove its general acceptance and reliability:
(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;While not a full repudiation of the general acceptance principle, such a ruling did suggest a movement toward liberalization of the admissibility standard.(41)
Toward a More Lenient Standard - Rubanick,
and Toxic Torts
In Rubanick, the court held that in toxic tort litigation, "a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field."(45) With the loosening of the causation threshold, comes a stricter standard for the expert proposing the theory: "The evidence of such scientific knowledge must be proffered by an expert who is sufficiently qualified by education, knowledge, training, and experience in the specific field of science. The expert must possess a demonstrated professional capability to assess the scientific significance of the underlying data and information, to apply the scientific methodology, and to explain the bases for the opinion reached."(46) In practice, Rubanick changed the emphasis from general acceptance in the scientific community to the validity of the expert's methodology and reasoning.
In Rubanick, the court held that a witness, who was a biochemist, but not a physician, could testify that exposure to PCB's had caused colon cancer in the individual plaintiffs. Justice Pollock, in Landrigan, applied Rubanick to set the standard for allowing the jury to hear epidemiological evidence. In this case, the lower court had rejected the testimony of a non-physician epidemiologist and a doctor relying in part on epidemiological evidence who both sought to render opinions that asbestos caused colon cancer in the plaintiff. (47) In reversing the courts, Justice Pollock stated:
at a Rule 8 hearing [which later became Rule 104 - requiring a preliminary assessment of admissibility without the jury present] epidemiologists, like experts generally, must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable. That explanation will enable the trial court to determine whether the expert's opinion "will assist the trier of fact to understand the evidence or determine a fact in issue," Evid. R. 56(2), or whether the opinion is, in current parlance, "junk science."(48)Justice Pollock suggested that the court "should determine whether the expert's opinion is derived from a sound and well-founded methodology that is supported by some expert consensus in the appropriate field." (49) To do this, trial courts can look to "professional journals, texts, conferences, symposia . . . judicial opinions accepting the methodology . . . [the positions of] recognized professional societies . . . [or] the witness's qualifications . . . ."(50)
When all the above factors are considered as a whole, it seems that the rather prescient New Jersey Supreme Court anticipated most the suggested standards formally established in Daubert.
What is the Future of Judicial Gatekeeping
in New Jersey?
Early Developments in Rhode Island: Common
Law Gatekeeping and Frye
In Gregoire the state supreme court endorsed the "general acceptance" idea in dicta, but refrained from citing Frye. Instead, the court chose to rely on Wigmore's treatise to support its overall assertion that, "judicial reliance upon such a device [an Alcometer] depends upon general acceptance of its reliability by experts in the relevant scientific field.(55)" While not a wholehearted embrace of Frye, Gregoire's tacit endorsement of the general acceptance criterion shaped the debate over admissibility of scientific testimony in Rhode Island for years to come.
Beyond "General Acceptance": From Morgan
The decision to include or exclude proposed expert testimony rests with the sound discretion of the trial judge. In reaching it he must give due consideration to the natural tendency of jurors to place greater weight on the testimony of one qualified as an expert. His decision must reflect his belief that the value to be derived from the proposed testimony justifies the admission of the opinion evidence.(57)This early recognition of the judge's duty to prevent bad science from unduly influencing the jury's decision presaged the United States Supreme Court by a full twenty-four years.(58)
In a similar departure from the strict "general acceptance" standard the Rhode Island Supreme Court ruled in Powers v. Carvalho(59) that lie detector results would be admitted, ". . . only if a foundation has been laid establishing the acceptance of the evidence as reliable and accurate in the relevant scientific fields of endeavor and of the qualifications or the expertise of the person who operated the device and interpreted its results.(60)" This reformulation of basic general acceptance doctrine marked the first time that the state supreme court suggested that the party seeking admission of expert testimony must demonstrate both that the underlying theory was valid and that the technical application of the theory was reliable.(61) Interestingly, the court again avoided citing to Frye for its assertions regarding general acceptance and chose instead to cite to Gregoire and Wigmore. It would not be until State v. Wheeler(62) in 1985 that Rhode Island would analyze Frye directly.
Wheeler involved the admission of voice spectrography evidence intended to identify the defendant as the person who had made an anonymous phone call to the local police regarding the whereabouts of an alleged manslaughter victim. During two weeks of pre-trial voir dire, the State presented testimony from a professor of audiology at Michigan State University, a doctor of acoustic phonetics, a local professor of acoustics, and a lieutenant in the Michigan State Police regarding their respective experiences with and faith in the reliability of spectrography as a means of voice identification. The defense did not present any experts or other scientific materials to refute the State's assertions. The only argument made by the defense was that since voice spectrography was a novel science, the Frye general acceptance standard alone should govern its admissibility.(63)
In ruling that the trial judge was correct in admitting the spectrography evidence, the state supreme court asserted that helpfulness to the trier of fact should be the key consideration in determining issues of admissibility of expert testimony.(64) In coming to this conclusion the Wheeler court indicated that the trial judge must first, "consider whether the testimony sought is relevant.(65)" Next, the trial justice must consider whether, "the subject matter is one on which expert testimony is appropriate.(66)" Consistent with Morgan, the Wheeler court noted that trial judges should be mindful of jurors' tendencies to give more weight to the testimony of court-ordained experts.(67) Along these lines, the court asserted further that determinations of experts' qualifications are addressed to the sound discretion of the trial judge and should not be disturbed absent a showing of abuse.(68) Finally, the court noted that when considering the helpfulness of actual testimony the trial judge must find that the testimony offered is of "substantial probative value.(69)"
Despite its sweeping discussion of Frye and enumeration of a fairly well-developed, Daubert-like balancing test, the Wheeler court neither directly endorsed nor repudiated the Frye general acceptance standard.(70) Since Wheeler, no real consensus has emerged as to how Rhode Island courts should apply these differing standards.
Rule 702 and Quattrocchi: Is Daubert
on the Way?
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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 fact or opinion.(71)The Advisory Committee notes to Rule 702 seemed to predict that the adoption of this measure would sound the death knell for Frye. The Committee opined that the Rhode Island Supreme Court has "declined to apply the outdated and restrictive (Frye) standard;(72)" and, rather, "applied a more open relevancy/helpfulness approach that combines the principles of Rule 401 (relevancy) and 702 (helpfulness) in a Rule 403-type of balancing. . . . consistent with the modern trend under the federal rules.(73)" Two years later, however, the Rhode Island Supreme Court in State v. Dery(74) would prove Frye's death watch a bit premature by relying explicitly upon the general acceptance language in Frye to exclude exculpatory testimony based on lie detector results. In noting that the overwhelming weight of authority had rejected the admissibility of polygraph evidence, Justice Weisberger writing for the court both endorsed the Frye test by name and applied its form of analysis to the facts at issue.(75) This full retrenchment of Frye would prove short-lived.
A mere six months after Dery, the court in State v. Walters(76) (again per Justice Weisberger) reasoned that the admissibility of evidence of bullet trajectories required, "sufficient indicia of reliability so that it will contribute to the search for truth as opposed to exercising its potential to mislead the jury.(77)" More importantly, the court noted that although this case was tried prior to the adoption of Rule 702, the evidence would have been excluded under that standard as well. The court explained that according to Second Circuit in Williams, the criteria for admissibility under Federal Rule 702 included, "probativeness, materiality, and reliability of the evidence, on the one side, and any tendency to mislead, prejudice, or confuse the jury on the other. . . .(78)" Similarly, in State v. Gomes(79) the state supreme court shied away from the general acceptance standard and instead relied upon Rule 403's probative/prejudicial test to exclude novel expert testimony as to the unreliability of eyewitness accounts. Once again the state supreme court seemed to acknowledge that Frye, while certainly valuable as a tool for evaluating novel expert testimony, was not the only means by which judges could scrutinize expert testimony.
In 1993 the Rhode Island Supreme Court in Soares v. Vestal(80) made its first reference to Daubert by stating that while not at issue in the case then at hand, the matters addressed in Daubert concerning the application of Rule 702 would soon be addressed.(81) In the 1996 case of State v. Odell(82) the state supreme court disagreed with the defendant's assertion that Daubert superseded Dery and rejected his attempt to gain admission of exculpatory lie detector results. In doing so the court noted that Dery was consistent with Daubert in that it relied both on Frye and an analysis of the inaccuracy of polygraph testing.(83) The state's highest court would not directly confront Daubert, however, until later that same year in State v. Quattrochi.(84)
Quattrochi was an appeal from a conviction
for two counts of first-degree sexual assault.(85)
At the initial trial the state offered evidence of repressed recollections
of childhood abuse to prove that the alleged instances of sexual misconduct
had indeed occurred.(86)
Although the state supreme court refrained from ruling on the reliability
and admissibility of repressed recollection testimony, the court cited
for the assertion that in order to perform its proper gatekeeping function
a trial court, "must hold a preliminary evidentiary hearing outside the
presence of the jury in order to determine whether such evidence is reliable
and whether the situation is one on which expert testimony is appropriate.(87)"
The court went on to cite Daubert and list the four Rule 702 admissibility
criteria laid out by the U.S. Supreme Court in its decision.(88)
The Rhode Island court was quick, however, to remark in an accompanying
footnote that their citing to Daubert did not represent an abandonment
of the Frye test as analyzed in Wheeler and applied in Dery.(89)
Once again the court left for another day the ultimate determination of
what emphasis should be placed on general acceptance as set forth in
The only clear lessons to be learned from Quattrocchi so far, appear
to be that in both criminal and civil cases the proper exercise of judicial
gatekeeping requires judges to conduct a preliminary investigation of proffered
expert testimony before it is to be submitted to the jury, and that failure
to conduct such an investigation constitutes reversible error.(91)
Ultimately, there exists no clear standard to be employed in arguing the
admissibility of expert testimony in Rhode Island. Frye retains
much of its vitality and is still a major if not controlling factor in
determining admissibility. At the same time, the recent trend has been
to give at least tacit approval to Daubert and its Federal Rules-based
framework. Whether one or the other approach will gain favor in Rhode Island's
courts remains to be seen.
Early Developments: Lindemuth and Trimble
- Frye Gains "General Acceptance"
The Frye decision was not actually mentioned by name until State v. Trimble.(94) In Trimble the Court relied on Frye not so much for the "general acceptance" standard, but instead to support the exclusion of polygraph results when a defendant objected them to. The Court quoted "with approval" the section from the Frye decision where the "general acceptance" test was articulated because "[t]he reasons given for the refusal of such [polygraph] evidence was so cogently stated by the court."(95) By quoting from and agreeing with the language that formed the holding of Frye, the Court effectively set "general acceptance" as the standard for judging the admissibility of scientific evidence in New Mexico for the next 30 years.
Liberalizing "General Acceptance" with the New Mexico Rules of Evidence
New Mexico's broadening of Frye has been most evident in a handful of state cases analyzing the admissibility of polygraph results. Currently, New Mexico is the only state in the country where the results of polygraph exams are presumptively admissible without stipulation of the parties.(97) Many states reconsidered their long established Frye-based per se exclusion of polygraph results in the wake of the Daubert decision in 1993; however, New Mexico arrived at its full admissibility (with safeguards) standard in the 1975 case of State v. Dorsey.(98)Dorsey overruled Trimble and removed the requirement that in order to be admitted, polygraph evidence must be stipulated to by the parties and must not have been objected to by either party. The court rejected these two requirements because they were "mechanistic," "inconsistent with the concept of due process," "repugnant to the announced purpose and construction of the New Mexico Rules of Evidence," and "[p]articularly incompatible with the purposes and scope of Rules 401, 402, 702, and 703 of the New Mexico Rules of Evidence."(99) This last reason, incompatibility with the New Mexico Rules of Evidence, hints at the profound effect that the newly enacted rules would have on hastening the demise of the rigid Frye standard. Since Dorsey, the only showing that must be made to admit polygraph results are: "a foundation [to] establish the expertise of the polygrapher, [a showing] that the procedure utilized is accepted as reliable in the expert's profession, and [the establishment of] the validity of the particular test made on the subject."(100) Interestingly, New Mexico's liberal approach to polygraph exams was the product of a reliability analysis quite similar to the one that would be proposed by Daubert 20 years later.(101)
New Mexico's unique position on the polygraph issue was echoed in the broad manner in which the Frye standard was applied to other cases. Where traditional Frye opinions rely mostly on a determination of "general acceptance," New Mexico's Frye jurisprudence focuses more on reliability. For example, in Beachum, the New Mexico Supreme Court considered whether hypnotically induced recollections should be admissible or whether the use of hypnosis was unduly suggestive. The Court noted that, "[t]he crux of the issue is whether hypnosis is reasonablyreliable, not in eliciting truth as with polygraph and narco-analysis, but rather in refreshing a witness' memory."(102) Although the Court ultimately excluded the hypnotically refreshed recollections, its focus on the qualifications of the expert and the reliability of the procedures used is consistent with a more liberal system of admitting scientific evidence. In one sense, any scientific evidence that has been generally accepted is presumed to be reliable. New Mexico's emphasis on reliability, however, allows admission of novel scientific evidence that has not yet been generally accepted, "Rule 401, which defines relevancy . . . does not expressly require general scientific acceptance of a particular scientific device before it becomes relevant. The essential requirement for relevancy of scientific evidence is reliability."(103) Alternatively, New Mexico's focus on reliability could cause some evidence based on "generally accepted" science to be deemed inadmissible because it is unreliable in a particular case.(104)
In addition to the New Mexico Rules of Evidence, another reasons for New Mexico's more open approach to admitting scientific evidence is the high level of faith the state places in its juries. One of the main criticisms of polygraphs is that they might be shrouded in an "aura of infallibility" that could cause a jury to give the methodology undue weight. New Mexico's courts have not afforded much credence to such concerns. For instance, in Simon Neustadt(105) the court considered the admissibility of psychological stress evaluations (PSE's), which are quite similar to pure polygraph tests measuring changes in the subject's voice instead of heartbeat or perspiration to detect deception, and noted that:
We have considered the fact that a jury is likely to find PSE evidence persuasive and that PSE evidence may impinge upon the traditional functions of a jury. However, we believe that PSE does not differ from a polygraph in this regard. We also recognize that PSE results are not foolproof. We leave it to the sound discretion of the trial court to make certain that the required foundation is laid and that no unfairness results.The court went on to state that simply because a diversity of opinion surrounds a scientific procedure, it is not enough to justify a per se rule of inadmissibility. The court stated, "We agree with Professor McCormick's approach: 'McCormick . . . believes that disagreement in the scientific community regarding the reliability of a scientific process should go to the weight rather than the admissibility of scientific evidence.'"(106) This approach is clearly inconsistent with a pure application of the Frye "general acceptance" standard. Indeed, such deference shows the extent to which the enactment of the New Mexico Rules of Evidence subsumed the Frye standard and empowered New Mexico juries.
Continuing this anti-Frye trend the New Mexico Court of Appeals in Fuyat v. Los Alamos National Laboratory(107) declined to employ a Frye analysis to testimony in the field of clinical ecology which as a specialty had not attained recognition from the American Medical Association. Instead, the Court of Appeals stated that in accordance with Rule 11-702 expert testimony is admissible, "when an expert is properly qualified and the evidence would assist the trier of fact."(108) By focusing its inquiry solely upon the expert's qualifications, the Fuyat court effectively dethroned general acceptance as a dispositive admissibility criterion in New Mexico. It would take another two years, however, for the New Mexico Supreme Court to declare Frye officially dead.
Daubert Ascendant: Alberico and Anderson
Quoting the Third Circuit in United States v. Downing(115) the Alberico court noted that the Frye test:
. . . should be rejected as an independent controlling standard of admissibility. Accordingly, we hold that a particular degree of acceptance of a scientific technique within the scientific community is neither a necessary nor a sufficient condition for admissibility; it is, however, one factor that a district court normally should consider in deciding whether to admit evidence based upon the technique.(116)Similarly, Alberico cites to Daubert for the proposition that the Frye test is, "an austere standard, absent from and incompatible with the Federal Rules of Evidence."(117) By reiterating that Federal Rule 702 is identical to New Mexico's Rule 11-702 the court seems to suggest that Frye is correspondingly inappropriate under New Mexico law.(118)
Having rejected Frye in such a decisive manner, the state supreme court opined that when determining questions of admissibility of scientific testimony the trial court's focus, ". . . should not be solely on whether the scientific technique has gained general acceptance within its particular field. Rather it should be on the validity and the soundness of the scientific method used to generate the evidence."(119) The court goes on to note that placing such an emphasis on scientific validity in rejecting Frye is a fairly unique endeavor. Other courts that have rejected Frye have tended to base their new admissibility standards on scientific reliability rather than scientific validity with reliability defined as a measure of bringing about consistent results and validity defined as proof that the technique is able to show what it purports to show.(120) Mindful of these semantic nuances, the Alberico court merges the two concepts noting that:
We view validity and reliability as being scientifically interrelated with the concept of validity encompassing the concept of reliability. In other words, if a particular scientific technique brings about consistent results, that is one element of validity, that is, proof of the technique's ability to show what it purports to show.(121)The court further asserts that although scientifically interrelated, validity and reliability are each related to separate evidentiary concepts, "validity relates to the measure of determining whether the testimony is grounded in or a function of established scientific methods," and that "reliability is akin to relevancy in considering whether the expert testimony will assist the trier of fact."(122) In the end the Alberico court seems confident that both evidentiary concepts are addressed by exploring validity as a whole.
Alberico court provides three broad criteria as guidelines for lower courts to use in determining the validity and therefore admissibility of scientific testimony. The first and most important of these criteria is whether the technique is based upon established scientific analysis. This is to say that a methodology grounded in the established practices of a respected scientific discipline(123) could be admissible regardless of whether it has been generally accepted within the field. Conversely, a methodology that is generally accepted within a given community of pseudo-scientists(124) but lacks the indicia of reliability and validity present in more regimented fields might not be admissible.(125) The next suggested guideline is the availability of specialized literature addressing the validity of the technique.(126) Third, the court recommends general acceptance as another factor that could be considered when determining scientific validity and therefore legal admissibility.(127) The court is quick to note, however, that these factors are not the sine qua non for admissibility, "these criteria will serve as guidelines for our lower courts and allow for further development in this area of our case law."(128)
Acting on this definitional mandate, the state
supreme court decided State v. Anderson(129)
which further embraced the Daubert admissibility standards examined
in Alberico. Anderson used the four reliability criteria
listed in Daubert(130)
and suggested in Alberico to provide an analytical framework for
determining the admissibility of DNA evidence. In ruling that DNA evidence
did meet the threshold of reliability under Rule 11-702, the Anderson
court methodically addressed each of the
Daubert standards in order.
Whether state courts will engage in such a structured inquiry each time
they face an admissibility question remains to be seen. What is clear,
however, is that New Mexico has long been ahead of the curve in fleshing
out the judge's role as gatekeeper.
Frye: Ohio's First Approach
The 1980 Ohio Rules of Evidence: Frye Codified
Immediately following the promulgation of the Ohio Rules, the state supreme court seemed content to adhere to a general acceptance approach to admissibility. In State v. Thomas(138) the Ohio Supreme Court noted without reference to Rule 702 that expert testimony regarding "battered woman syndrome" was "inadmissible because it is not distinctly related to some science, profession or occupations so as to be beyond the ken of the average lay person. Furthermore, no general acceptance of the expert's particular methodology has been established."(139) A year later in State v. Williams(140) the Ohio Court of Appeals interpreted Rule 702 as consistent with Frye by stating that "new scientific tests when shown to be relevant and to be generally accepted by the scientific community ought to be admitted into evidence. This is certainly in line with the Ohio Rules of Evidence. . . ."(141) Under Williams, general acceptance would retain its validity in Ohio's courts for at least another six years.
In 1988 the Ohio Supreme Court once again called into question its long-standing acceptance of Frye. While refusing to adopt the Frye test for determining the admissibility of hypnotically refreshed memory testimony, the court in State v. Johnston(142) stated that "[i]t has been persuasively argued that the Frye test was silently abolished by the adoption of the Federal Rules of Evidence."(143) Instead of general acceptance the Johnston court recommended that hypnotically refreshed testimony should be scrutinized by trial courts at a pretrial hearing using a "'totality of the circumstances' test to determine the reliability of the proposed testimony."(144) While this reliability-based inquiry presaged Daubert and suggested that Ohio had finally eschewed Frye, any reports of general acceptance's death were greatly exaggerated.
In State v. Koss(145) the Ohio Supreme Court revisited the issue of whether "battered woman syndrome" testimony should be admissible.(146) To start, the Koss court noted that in Thomas the court had found that at that time "no general acceptance of the expert's particular methodology had been established."(147) The Koss court reasoned, however, that since the time when Thomas was handed down, "battered woman syndrome" had gained significant credibility in the scientific community such that it might "assist the trier of fact to understand evidence or to determine a fact in issue."(148) In reaching this conclusion the Koss court relied on three cases from other jurisdictions that had found that "battered woman syndrome" had gained general acceptance within the scientific community.(149) In two of these cases the courts had held Frye hearings to determine whether the testimony had attained general acceptance.(150) Taken together the court's reasoning in Koss suggested that Ohio remained wedded to the Frye general acceptance test despite the rules and Johnston.(151) It would take another four years and a revamping of Rule 702 to settle the question of where general acceptance would fit within the Ohio Rules of Evidence.
The "New" Rule 702 and Daubert: Questions
A witness may testify as an expert if all of the following apply:This recodification made reliability a key determination for admissibility while relegating general acceptance to one of many indicia of reliability. Indeed, according to the framers of the rule it was intended specifically to endorse those Ohio decisions that had rejected the Frye general acceptance test.(153) Interestingly, the new rule did not attempt to define the standard of reliability; but rather, left this to further development through case law.(154) The Staff Note did indicate that courts might find Daubert helpful in formulating their approach to admissibility under the new rule.(155)
Recently, the Ohio Supreme Court has looked
to Daubert for guidance in determining admissibility under the amended
version of Rule 702. In Miller v. Bike Athletic Company,(156)
the Ohio Supreme Court cited with approval to the four "Daubert
reliability factors" while noting that the ultimate touchstone remains
"helpfulness to the jury."(157)
As Daubert gains persuasive authority in Ohio's courts the true
parameters of reliability will become more readily apparent. As of now,
it remains to be seen how exactly Rule 702 will effect admissibility of
expert testimony in Ohio.
While these states were attempting to address how Daubert related to their respective state jurisprudence, the U.S. Supreme Court was busy attempting to clarify its holding in Daubert. Recently, in General Electric Co. v. Joiner(158) the U.S. Supreme Court determined that the "abuse of discretion" standard is the proper standard of review for a trial court's decision to admit or exclude expert testimony under Daubert. In Joiner an electrician sued the manufacturers of a coolant used in electrical transformers which he occasionally came into contact with when repairing power equipment. He alleged that although he was a smoker with a history of lung cancer in his family, his exposure to the PCBs, furans, and dioxins in the coolant "promoted" his development of small cell lung cancer.(159) The defense removed the case to federal court and moved for summary judgment based partly on the contention that, "there was no admissible scientific evidence that PCBs promoted Joiner's cancer."(160) The district court granted summary judgment on the basis that, "the testimony of Joiner's experts had failed to show that there was a link between exposure to PCBs and small cell lung cancer."(161) They further went on to conclude that the testimony of Joiner's experts did not rise above subjective belief or unsupported speculation, and therefore, should not be admitted into evidence.(162) The Court of Appeals for the Eleventh Circuit reversed the district court's holding and reasoned that, "because the Federal Rules of Evidence governing expert testimony display a preference for admissibility, we apply a particularly stringent standard of review to the trial judge's exclusion of expert testimony."(163)
The Supreme Court reversed the Court of Appeals and noted that such a "particularly stringent" standard of review was improper in this context:
Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the "gatekeeper" role of the trial judge in screening such evidence. A court of appeals applying "abuse of discretion" review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings which disallow it. We likewise reject respondent's argument that because the granting of summary judgment in this case was "outcome determinative," it should have been subject to a more searching standard of review. On a motion for summary judgment, disputed issues of fact are resolved against the moving party -- here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse of discretion standard.(164)The circuit court's "particularly stringent," pro-admission standard was indeed short-lived.
In concluding that the district court did not abuse its discretion in excluding the plaintiff's experts, the Supreme Court examined the adequacy of the expert testimony the plaintiff sought to introduce to prove causation. The plaintiff's experts relied heavily upon animal studies to establish proof of causation in humans. The Court found, however, that the plaintiff failed to establish enough of a foundation to support the admissibility of these studies:
Rather than explaining how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies, respondent chose "to proceed as if the only issue [was] whether animal studies can ever be a proper foundation for an expert's opinion." Of course, whether animal studies can ever be a proper foundation for an expert's opinion was not the issue. The issue was whether these experts' opinions were sufficiently supported by the animal studies on which they purported to rely. The studies were so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the District Court to have rejected the experts' reliance on them.(165)Finally, the Supreme Court went on to suggest that it was not an abuse of discretion for the district court to demand a closer relationship between the epidemiological studies offered by the plaintiffs and the opinions drawn from them by the experts:
A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals, Inc. 959 F.2d 1349, 1360 (CA 6), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 47, 114 S. Ct. 84 (1992). That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.(166)Upholding a judge's right to exclude given expert testimony on the basis of perceived analytical gaps in the science is an unprecedented broadening of the gatekeeper role. Such a ruling at first seems to run contrary to the "liberal thrust" of the Rules of Evidence as articulated in Daubert. It remains to be seen whether courts will be as deferential when judges exercise their discretion in favor of admissibility of arguably questionable scientific evidence. How Joiner will effect other states in the nation that employ the abuse of discretion standard also remains to be seen.
F. 1013 ( D.C. Cir. 1923).
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