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The State of Judicial Gatekeeping in New Jersey

by Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99

[Presented on November 24, 1997 at the Judicial Gatekeeping Seminar in Teaneck, New Jersey.]
     Science represents the promise of a judicial system that consistently finds the truth and fairly metes out justice in every case. From DNA evidence, to neutron activation analysis, to radioimmunoassay analysis, to toxic torts, science is the key to convicting dangerous criminals which previously had to be freed and to placing liability for disease causing chemicals in cases where victims would previously have gone uncompensated. The unremitting danger that keeps this scientific utopia from becoming a reality is that science, with its complexity and novelty can be easily misevaluated, or worse - faked. Equally hazardous is our reliance on science as a black box containing all the solutions we need; while the science present in a case may be legitimate and properly interpreted, it could still be inadequate to yield the answers we ask of it. Today, judges almost need an engineering degree along with their law degree to fully understand and evaluate the scientific methods and results attorneys are proposing to show juries. This is the difficult task before the judicial gatekeeper. This series of essays will attempt to address these important issues and provide some thoughts as to how judges around the nation are dealing with their role as gatekeeper. What follows is a brief synopsis of the judge's role as a judicial gatekeeper in New Jersey.

Frye - New Jersey's Dominant Standard
     In 1923, the D.C. Circuit announced its landmark decision about expert opinion testimony based on novel scientific procedures in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Frye became the federal standard for judges to apply in evaluating scientific evidence. In Frye, a defendant in a murder trial attempted to show his innocence by using a lie detector test that measured systolic blood pressure. The court excluded the evidence, reasoning that the lie detector test was unreliable because the scientific principle upon which it was based was not "sufficiently established to have gained general acceptance in the particular field in which it belongs."(1) Id. at 1014. The implication is that one "expert" scientist testifying to the accuracy of the lie detector would not be enough, a large community of scientists must accept the test in order for the judge to allow the jury to hear the evidence. In New Jersey, the Frye general acceptance standard was first cited in the context of a lie detector test in State v. Arnwine, 171 A.2d 124 (N.J. Super. Ct. App. Div. 1961). Since then, most novel scientific evidence in New Jersey has been held up to the Frye standard.

Daubert and the New Jersey Rules of Evidence
     When the Federal Rules of Evidence were enacted in 1975, they liberalized the attitude toward the admission of evidence by giving trial judges much broader discretion than they previously had. Rule 104(a) allows the judge to determine whether an expert can testify, and Rule 702 guides this determination by requiring the judge to decide whether the testimony will aid the jury's factfinding and whether the witness is qualified as an expert. Finally, Rule 403 allows the judge to exclude evidence if its likely prejudicial effect outweighs its probative value. The question was then to what degree the arguably conservative Frye "general acceptance" standard survived the enactment of the more liberal Federal Rules of Evidence.

     This question was answered in the 1993 case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993) (where the plaintiffs sought to introduce evidence that birth defects had been caused by mother's ingestion of the anti-nausea drug Bendectin). The Court held that Rule 702 did in fact supersede the Frye standard, and adopted a new standard to instruct judges on their gatekeeping role. This new role requires from the judges a two step process to determine the reliability and relevance of the evidence: "[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 in issue."(2) The Court presented a non-exhaustive list of five factors a court can weigh when deciding whether to admit the evidence: (1) whether the theory or technique is testable or falsifiable, (2) whether the method has been subjected to peer review, (3) whether the rate of error is too high, (4) the existence and maintenance of standards controlling the technique's operation, and (5) whether the method has received "general acceptance."(3) Here "general acceptance" becomes one of many factors the court can choose to consider.

     Significantly, New Jersey's own rule of evidence concerning expert testimony, Rule 702, is nearly indistinguishable from the Federal Rule of Evidence 702(4) (which superseded Frye). However, New Jersey courts have not interpreted New Jersey's Rule 702 as superseding Frye. Instead, New Jersey has continued to embrace the Frye general acceptance test, but interprets it in conjunction with its newest rules of evidence. This is a departure from a pure general acceptance standard (which will be handled more thoroughly in the next section.) The only area in which New Jersey has adopted a more lenient standard than "general acceptance" (still without adopting Daubert) is with toxic torts. 

     New Jersey apparently sees the "general acceptance" test as more conservative standard and has viewed any move toward the Daubert standard as more lenient, but is this true? 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.(5)

"Reasonable Reliability" - Hurd, Frye, and Rule 56(2)
     Under the original New Jersey Rules of Rules of Evidence adopted in 1967, the admissibility of expert scientific testimony was governed by Rule 56(2). This original version of the rule read:

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.(6) 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."(7) 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.(8) In 1981, however, the New Jersey Supreme Court slightly reformulated the basic Frye inquiry in State v. Hurd.(9)

     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."(10)

     This broadened inquiry first enumerated in Hurd was incorporated in the amended version of New Jersey Rule of Evidence 56(2) which 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.(11) 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(12) came down in 1984.

State v. Kelly - Widening the Gate?
     In Kelly, the New Jersey Supreme Court faced the question of whether testimony on battered women's syndrome met the Rule 56(2) standard of admissibility. The fairly novel science at issue in Kelly forced the court to examine the relative importance of the general acceptance/reasonable reliability framework underlying the New Jersey rules. In addressing this issue, the court articulated a three-pronged admissibility standard based upon Rule 56(2):

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.(13)
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; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance.(14)
While not a full repudiation of the general acceptance principle, such a ruling did suggest a movement toward liberalization of the admissibility standard.(15)

Toward a More Lenient Standard - Rubanick, Landrigan, and Toxic Torts
     Two years before Daubert, New Jersey recognized that in certain types of cutting edge scientific cases, the general acceptance standard would need to be relaxed. In Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991) and Landrigan v. Celotex, 127 N.J. 404 (1992), the New Jersey Supreme Court fashioned a more liberal standard to meet the special challenges in toxic torts. In seeking "to accommodate the requirements for the admission of expert testimony with the need for that testimony," New Jersey recognized that in the area of toxic torts, "proof that a defendant's conduct caused decedent's injuries is more subtle and sophisticated than proof in cases concerned with more traditional torts."(16) Therefore, to allow plaintiffs a greater opportunity to present evidence and actually maintain toxic tort claims, the courts broadened the reliability standard. This allowance recognizes that while causation evidence in toxic tort cases may not be generally accepted, the evidence could still be found to be reliable. 

     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."(17) 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."(18) 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. (19) 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."(20)
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." (21) 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 . . . ."(22)

     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?
     In the search for the ideal standard, New Jersey promises to produce some vibrant debates on the judge's gatekeeping responsibility. New Jersey faces the problem of existing with three standards. Applying Frye in most state cases, applying the intermediate standard of Rubanick and Landrigan in state toxic tort cases, and applying Daubert in the federal courts, New Jersey will continue to experience a tension between the three standards. Even without the Daubert tension, there are still questions about Frye that remain to be answered:

· [P]recisely which field of the "scientific community" must find the evidence acceptable? 

· Assuming such a field is identifiable, what percentage of that "community" must find the evidence acceptable to satisfy the "generally accepted" standard? 

· Exactly what must be accepted, the underlying scientific principle, the technique applying it, or both?(23)

These issues are not easy to resolve; however, like the science itself, the law of judicial gatekeeping in New Jersey will continue to evolve and improve to meet the challenges of the next century.


1. In addition to general acceptance, "[t]hree other grounds were commonly used to support the denial: that polygraph results would be 'unduly persuasive' to juries, that admitting the results would lead to a time-consuming and confusing 'trial of the lie detector,' and that polygraph results are not accurate." James McCall, Misconceptions and Reevaluation - Polygraph Admissibility After Rock and Daubert, 1996 U. Ill. L. Rev. 363, 369 (1996).
2. Id. at 2796. 
3. Id. at 2796-97.
4. Compare N.J.R.E. 702 (1996), "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." with Fed. R. Evid. 702 (1996) "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."
5. For a more thorough discussion of this issue see infra, "Is Daubert a Liberalizing or Constraining Change from Frye?"
6. Christine M. Gurry, Note, Epidemiological Evidence may be used to Establish causation in Toxic Tort Litigation Provided that the Applicable Standards of Admissibility are Met, 24 Seton Hall L. Rev. 447, 466-7 (1993)
7. Gurry, 24 Seton Hall L. Rev. at 467 citing State v. Cavallo 88 N.J. 508, 517 n.2, 443 A.2d 1020, 1024 n.2 (1982).
8. Gurry, 24 Seton Hall L. Rev. at 467.
9. 86 N.J. 525, 432 A.2d 86 (1981).
10. Gurry, 24 Seton Hall L. Rev. at 468-9.
11. Gurry, 24 Seton Hall L. Rev. at 469.
12. 97 N.J. 178, 478 A.2d 364 (1984).
13. 97 N.J. at 178, 478 A.2d at 379. The three-pronged Kelly general admissibility framework was incorporated into N.J.R.E. 702 which supplanted Rule 56(2) without fundamentally altering its provisions. See Richard J. Biunno, Current N.J. Rules of Evidence, N.J.R.E. 702 (1997-98). 
14. Kelly 97 N.J. at 210.
15. Gurry, 24 Seton Hall L. Rev. at 471.
16. Landrigan 404 A.2d at 412-13.
17. Id. at 413 (citing Rubanick 125 N.J. at 449).
18. Id.
19. Id. at 409.
20. Id.
21. Id.
22. Id.
23. Mark R. Kapusta, Daubert Versus Flanagan Comparing Standards for the Admissibility of Scientific Evidence in Florida State and Federal Courts, 68-Dec Fla. B.J. 38, 40 (1994).

Page Last Modified on May 1, 1999 by Dan Fridman - Copyright 1999
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