Legal News You Can Use: All About Daubert
By Debora Inman of Law Offices of Gary Green
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1973) is a landmark case in which the Supreme Court ruled on the proper standard for the admission of expert testimony. Up until this case, it was widely known that the test to be used when making this determination was called “the general acceptance test” and it had been derived from Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923). This test, by definition, required the scientific evidence sought to be introduced to be regarded as generally accepted in the field from which it came. Judges utilizing Frye were required to determine where within the spectrum of scientific discovery the evidence sought to be introduced fell. The marker that must have been past was general acceptance within the community, the spectrum being book-ended by recent discovery and hypothesis on one end and uncontroverted known science on the other. So how does a Judge pinpoint an exact moment in time when a crazy idea turns into generally accepted scientific knowledge? The answer to that question lies within 50 years of jurisprudence between Frye and Daubert.
The authors of the Frye decision were debating whether evidence derived from a machine designed to perform as a lie detector was admissible. The science was new and the machine was an early attempt at polygraph. Ultimately, the Frye court determined the evidence to be inadmissible because the deception test had not received enough acceptance and recognition among the experts in the field. The opinion was stated candidly: “(j)ust when a scientific principle crosses the line between the experimental and demonstrable stages is difficult to define.” Frye at 1014. In fact, this difficulty was the reason Frye would ultimately receive the most criticism. The narrow window through which evidence would be admitted under the general acceptance test kept out expert testimony on cutting edge achievements in science.
The seeds for Frye‘s ultimate upheaval were planted in 1975 when the Federal Rules of Evidence were first adopted. Looking through cases in which expert testimony’s admissibility is at issue between 1975 and 1993 (when Daubert was published) provides an interesting view of the evolution of scientific evidence introduction. In 1976 the California Supreme Court decided a case in which the proffered scientific evidence was spectographic analysis, or voice printing. People v. Kelly, 549 P. 2d 1240, 17 Cal. 3d 24 (1976). In this case the State used expert testimony to establish the defendant’s voice identity on the recorded phone calls. The defendant successfully challenged his conviction on the basis of the expert testimony regarding voice printing not meeting general acceptance requirements under a Frye analysis. This case was decided a year after the adoption of the Federal Rules of Evidence but the decision makes no mention of them. In fact, the decision reaffirms California’s express acceptance of Frye and touts its benefits. Kelly points out that Frye intentionally created a roadblock to keep out evidence based on new scientific principles. Id. At 32.
The tide seems to shift with the arrival of DNA technology. The science of DNA and how it could be used to identify criminal suspects was evolving. Law enforcement agencies began taking advantage of this new technology as soon as it became available. This put many judges in the position of presiding over Frye hearings and deciding whether DNA science was generally accepted. The outcome of these Frye hearings determined whether murderers, kidnappers, and rapists would walk free in some cases. DNA evidence and expert testimony regarding it did not pass the traditional Frye test because it was new; however, the science behind DNA seemed reliable. Within this same time frame, individual states began adopting and implementing the Federal Rules of Evidence. Texas promulgated Rules of Evidence in 1986 based on the Federal Rules already in place. Then in 1992, the Texas Court of Criminal Appeals issued an opinion in which they acknowledged their own Rules of Evidence and stated they “never explicitly adopted the Frye test.” Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). The Kelly case was a situation in which the State sought to introduce DNA evidence to prove the guilt of the defendant who faced murder charges. The defendant objected on the grounds that the expert testimony regarding DNA evidence was not generally accepted and therefore did not pass the Frye test. The Texas Court of Criminal Appeals applied the Texas Rules of Evidence and disavowed the Frye test a full year before the Daubert decision. The tide was turning towards application of the Rules of Evidence in many other jurisdictions. The Second Circuit Court of Appeals decided a case in 1992 with facts similar to Kelly. Randolph Jakobetz sought to restrict the Federal Government from using DNA to convict him of kidnapping. U.S. v. Jakobetz, 955 F.2d 786 (2d Cir. 1992). This court also allowed the government to introduce DNA, applying the Federal Rules of Evidence and stating that the general acceptance requirement of Frye was just a factor to consider when determining reliability. Id. At 796.
But Daubert did not overturn Frye because of DNA, or because of the complaints of attorneys wishing to proffer novel scientific evidence. Daubert simply recognized that the introduction of Federal Rules of Evidence eliminated the need for the Frye test. Daubert is a landmark case for its simple instruction to use the Rules of Evidence to guide whether scientific evidence is admissible. The new test that emerges from Daubert is whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This requires a preliminary assessment of whether the testimony is scientifically valid and applicable to the facts at issue. The general acceptance test from Frye is converted into a way to analyze how reliable the proffered evidence is. Reliability is a consideration under Daubert, but the strict requirement of general acceptance is dissipated.
ARKANSAS IMPLEMENTS DAUBERT
The Arkansas Supreme Court officially adopted Daubert in Farm Bureau Mutual Insurance Company v. Foote, 341 Ark. 105 (2000). This is a case about a house fire and the homeowners who collect on their insurance policy. Farm Bureau had many reasons for their belief that they should not have had to pay on the policy, but this discussion focuses on only one: whether the fire was intentionally set.
During the trial phase of Foote, expert testimony was introduced to the jury regarding suspicious origins of the house fire as well as the presence of chemical accelerants being detected by the crime lab. In addition to this testimony, Farm Bureau sought to introduce expert testimony from an investigator from the Arkansas State Police who had utilized a canine during his investigation to sniff out accelerants. The trial court applied the admissibility test from Daubert and denied this proffered testimony.
On appeal, the Supreme Court of Arkansas agreed that the test from Daubert is the applicable standard in Arkansas, thereby officially adopting the U.S. Supreme Court’s ruling. The court in Foote clarified the factors to be considered when applying the Daubert test. One key consideration is whether the scientific theory or technique has been tested, or even can be tested. Another element of note is whether the technique has been subject to peer review through publication. In all practicality, these questions essentially ask, Is the science generally accepted?
The Court applied this test to the accelerant-sniffing dog and found that it did not pass the muster. Farm Bureau, as the proffering party, had the burden of showing the court that this expert had relevant information capable of helping the jury to understand a fact in question. The Court took note that Farm Bureau did not produce or introduce the study upon which the dog trainer’s techniques and training were based. Perhaps introduction of the study would have changed the ruling on this proffered expert. If the Court and opposing counsel had access to the study on which the proffered science was based, an examination could be made into the techniques used and the potential for error. Without the study, how can the Court determine whether the method or theory has been subject to peer review, or tested in any way?
When proffering scientific expert testimony in Arkansas, the practitioner must first ask the question, Is it relevant? The propounding party must analyze their proffered evidence under Arkansas Rules of Evidence 401, 402, and 403. Does the proffered evidence have a tendency to make the existence of any fact that is of consequence more or less probable? Everybody knows that all evidence that helps your case is by nature prejudicial to the other side. But the Judge must determine if the probative value outweighs the prejudicial effects. Additionally, when scientific evidence is proffered, the Court must consider the connection between the testimony proposed and the fact intended to be proven. The Court will try to determine if the proffered evidence is likely to confuse or mislead the jury when making this decision. And probably the most important thing the Court will consider is the reliability of the proffered evidence. The propounding party must convince the Court of reliability with evidence of peer review, sound methodology, and low likelihood of error. Reliability was the focus of the old test from Frye. But under Frye the proponent had only one way to show reliability, which of course was to show general acceptance in the scientific community. So while the ultimate goal of reliability remains consistent, Daubert opened up the channels of how the parties can demonstrate said reliability, thereby opening up the narrow window through which scientific evidence may be introduced.