| Message Board | News & Developments | Subscribe to the Judicial Gatekeeping Newsletter |
| Site Map | Search | Contact Us | Credits | Back
The State of Judicial Gatekeeping in New Mexico
by Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99
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 which follow it, we have laid out some possible answers to the myriad questions raised by judicial gatekeeping. This first paper attempts to establish a historical perspective on gatekeeping in New Mexico. The papers which 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.
From Frye 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 Frye would 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 judges 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 itsprobative 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 nonexhaustive 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.
New Mexico's Rule of Evidence 702 is essentially identical to the Federal Rule 702 which superseded Frye, and New Mexico has embraced most of the analytical framework laid out in Daubert.(6)
Early Developments: Lindemuth
and Trimble - Frye Gains "General Acceptance"
The Frye decision was not actually mentioned by name until State v. Trimble.(9) 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 they were objected to by a defendant. 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."(10) 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 and Dorsey
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.(12) 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.(13)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."(14) 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."(15) 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.(16)
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."(17) 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."(18) 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.(19)
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(20) 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: "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.'"(21) 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(22) declined to employ a Frye analysis to testimony in the field of clinical ecology which as a speciality 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."(23) 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
Quoting the Third Circuit in United States v. Downing(30) 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.(31)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."(32) 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.(33)
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."(34) 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.(35) 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.(36)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."(37) 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(38) 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(39) but lacks the indicia of reliability and validity present in more regimented fields might not be admissible.(40) The next suggested guideline is the availability of specialized literature addressing the validity of the technique.(41) Third, the court recommends general acceptance as another factor that could be considered when determining scientific validity and therefore legal admissibility.(42) 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."(43)
Acting on this definitional mandate, the state supreme court decided State v. Anderson(44) which further embraced the Daubert admissibility standards examined in Alberico. Anderson used the four reliability criteria listed in Daubert(45) 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.
Joiner and the Future
of Judicial Gatekeeping
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.(53)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.(54)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.(55)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 New Mexico and states like her that employ the abuse of discretion standard also remains to be seen.
293 F. 1013 ( D.C. Cir. 1923).
All materials are the property of the Berkman Center for Internet & Society and Harvard Law School.
Materials may be reproduced, distributed, or quoted as long as appropriate credit and citation is given.