By Thomas Lyons(1)
On June 28, 1993, the United States Supreme Court announced its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.(2) setting a new standard for the admission of at least some expert testimony in federal courts. The Court held the Federal Rules of Evidence(3) which Congress had adopted in 1975 supplanted the so-called Frye “general acceptance” test(4) upon which many courts had relied for years.(5) Specifically, the Court said Rule 702 primarily governed the admissibility of scientific testimony.(6) The Court listed four non-exclusive factors which indicate whether such testimony is sufficiently reliable for the jury.(7) The Daubert decision has provoked a landslide of litigation and decisions on expert testimony. Numerous state supreme and appellate courts have followed its reasoning to determine the admission of expert testimony in their trial courts.(8) However, the supreme or appellate courts of at least seven states including California, New York, Illinois and Florida have refused to abandon their own formulations of the Frye standard.(9)
The Rhode Island Supreme Court has so far declined to address whether it will follow the lead of the highest federal court.(10) Thirty-six years ago the court endorsed the general acceptance test for the admission of scientific testimony.(11) Since then the Court has never rejected that standard. In 1986, our Supreme Court approved our rules of evidence including Rule 702 which is identical to the federal rule. Two years later the court specifically relied on the Frye decision in deciding that the results of so-called lie detector tests are not admissible to show a witness’s veracity.(12) It continues to cite its decisions utilizing the general acceptance standard. However, the Court has recently stated in a footnote that Daubert’s “reasoning and guidelines are helpful and illuminating” and consistent with one of its most important decisions.(13) The court referred to Daubert as a “landmark case” while noting it has not yet abandoned the Frye Test.(14) However, other holdings show the court effectively predicted much of the Daubert reasoning and factors. Thus, the Rhode Island Supreme Court seems to straddle both standards. This article will review Daubert and its legacy and Rhode Island law on the admission of expert testimony.
The Federal Law
Frye is one of the most cryptic and debated decisions in American jurisprudence. James Alphonzo Frye was tried for second degree murder. In his defense, he offered the results of a systolic blood pressure test through an expert’s testimony to show he was telling the truth when he denied culpability. The trial court refused to allow the testimony.
The District of Columbia Court of Appeals considered Frye’s argument that changes in blood pressure demonstrated whether the test subject was prevaricating. In a now famous legal theorem the court said:
Just when a scientific principal or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (emphasis added).(15)
The Frye court said the expert’s opinion must be derived from “a thing” (presumably to distinguish such testimony from those opinions which derive from nothing). This phrase probably refers back to the “well recognized scientific principle[s] or discoverie[s]” of the previous sentence. To be admissible the expert testimony must found on science which is “demonstrable”, not merely “experimental”.
The Frye decision at first lay dormant among the jurisprudence. For the next twenty five years only eight federal and five state court cases cited it.(16) From 1948 to 1973, Frye was cited fifty-five times in federal cases and twenty-nine times in state cases.(17) Then, just before the adoption of the Federal Rules of Evidence in 1975, began an explosion of decisions citing Frye. Virtually every federal and state court addressing the general acceptance standard adopted it.(18) However, Frye was not cited in a civil case until 1984.(19) Interestingly, the Supreme Court never rendered a decision interpreting the Frye rule, though it did cast some doubt on Frye‘s vitality, at least in the criminal context.(20) Legal scholars have analyzed Frye like Egyptologists deciphering the Rosetta Stone.(21) Many courts and commentators have focused on what constitutes “general acceptance”.(22) Others have struggled with defining the “particular field” or “relevant scientific community” which determines whether the “thing” is generally accepted.(23)
Prof. Giannelli has summarized the arguments for and against the Frye rule.(24) The Frye standard establishes a method for ensuring the reliability of scientific evidence.(25) It “assures that those most qualified to assess the general validity of a scientific method will have the determinative voice.”(26) Frye eliminates the need for time consuming hearings on the validity of innovative techniques.(27) Frye promotes uniformity.(28)
On the other hand, how does the court define the relevant scientific community especially when the novel theory or technique involves several scientific disciplines?(29) How much familiarity with the challenged theory or technique is required before a scientist’s views are relevant?(30) What kind or quantum of acceptance constitutes general acceptance?(31) Must the scientific community accept both the validity of an underlying theory and the reliability of the novel technique?(32) How does one prove general acceptance; is it the testimony of experts, the preponderance of scientific literature, or the number of judicial opinions?(33) Does Frye apply to all scientific evidence or just “novel” scientific evidence?(34) Finally, Prof. Giannelli and others have found the Frye test susceptible to inconsistent judicial application or even manipulation through redefinition of Frye‘s elements.(35)
In 1975, Congress promulgated the Federal Rules of Evidence(36), including Rule 702:
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.(37)
Notably, while the Rule says an expert may testify to scientific or technical knowledge it nowhere indicates what constitutes such knowledge. The Advisory Committee Note to Rule 702 does not even mention the Frye standard nor does it discuss the issue. Thus, the foundational federal law seemingly went overnight from cryptic to nonexistent.
Litigants, federal judges and scholars promptly began churning up ideas, arguments and decisions on whether the new rules embodied the Frye standard, established a new standard or created a hybrid Frye standard.(38) One of the most influential decisions was United States v. Williams.(39) In Williams the Second Circuit addressed the admissibility of voice spectrography evidence. The defendants were convicted of violating federal narcotics laws. The district court admitted expert testimony that Williams’ voice was the same as that of “Biggie” from whom an undercover office purchased heroin.
Williams is similar to Frye in that it is a relatively short opinion, i.e. eight pages, and is largely devoid of citations. Only two decisions are mentioned outside of footnotes, one of which is Frye. The only reference to Rule 702 occurs in a footnote where the court observes that there is no reason to keep from the jury expert testimony which assists it.(40) The court initially noted the “weight of authority” supports the admissibility of spectrographic voice identification evidence, though it would conduct an independent evaluation.(41)
The Second Circuit commented that difficulty in applying Frye has led some courts to modify it.(42) In any event, it said the issue before it was the admissibility of a particular type of scientific evidence, not the truth or falsity of an alleged scientific fact.(43) Thus, the applicable considerations are “probativeness, materiality, and reliability of the evidence, on the one side, and any tendency to mislead, prejudice or confuse the jury on the other.”(44)
The court described the theory of voice spectrography. Each person supposedly has a unique combination of vocal cavities and vocal articulators which produce sounds having unique frequencies and intensities. The court mentioned the defendant’s arguments that there was not sufficient testing to establish that spectrograms of the same voice are more identical than spectrograms of different voices or that people cannot change the frequency or intensity of their vocal sounds. The court said in a footnote: “courts must decide admissibility issues in the light of the current state of the art.”(45) Thus, the Second Circuit backhandedly rejected the proposition underlying Frye that courts should let the state of the art develop before granting it evidentiary reliability.
The Circuit Court said the determination of reliability should not rest solely on “counting scientific noses”,(46) though that is a factor assuming the trial court can determine the relevant scientific community.(47) The other factors the court cited are “the potential rate of error”,(48) “the existence and maintenance of standards”,(49) “the care and concern” with which the technique has been employed,(50) the technique’s analogous relationship with other types of admissible techniques, and the presence of “fail-safe” characteristics which protect the opponent of the evidence from erroneous conclusions.(51) The court found little chance to mislead the jury where the voice spectrography machine prints out a bar spectrogram of the voices to be analyzed and the critical step is visual pattern comparison, “a step easily comprehended and evaluated by a jury”.(52) It held the spectrographic voice analysis admissible and affirmed the conviction.(53)
One group of commentators analyzing decisions like United States v. Williams have found them subject to the “show and tell” factor.(54) In other words, some courts may be more willing to allow expert testimony if the jury can see the basic facts from which the expert draws her conclusions. While viewing spectrographic printouts may help the jury critique the expert’s opinion that the printouts are similar, the printouts themselves do not validate the underlying theory that spectrography can identify people voices.
It now appears science does not accept voice printing as scientifically valid.(55) The theory became admissible through the efforts of a small number of people from Michigan State University, the Michigan state police and Bell Laboratories.(56) The theory was never validated by empirical evidence.(57) Unfortunately for Mr. Williams, his conviction may stand on “junk science”. The Williams court dismissed an important distinction Prof. Giannelli makes. Expert scientific testimony may depend on the reliability of a scientific technique, the validity of a scientific theory or both.(58) For example, a polygraph machine may reliably measure the subject’s physical reactions to questions. However, there may be no validity to the theory that those reactions indicate whether the subject is truthful. Conversely, deoxyribonucleic acid (DNA) found in bodily fluids may validly identify the person from whom the fluids came. However, the particular techniques used to collect, preserve and test the DNA may not be reliable. The Second Circuit addressed whether the techniques of voice spectrography were reliable but was largely indifferent to legitimate concerns that the underlying theory was valid, i.e. whether similar spectrographic printouts actually tend to show the same voice produced them. In this respect, the court was incorrect in stating the issues did not include the truth or falsity of an alleged “scientific fact.”
The Third Circuit in turn relied on United States v. Williams in its critical decision, United States v. Downing.(59) The issue in Downing was the admissibility of expert testimony on the reliability of eyewitness identifications. The trial court excluded the defendant’s proposed expert testimony because it would usurp the function of the jury.
The Circuit Court conducted a far ranging analysis. It considered the advantages and disadvantages of the Frye test as well as the arguments that the Federal Rules had replaced it with it a different test.(60) The court cited various examples of ways in which courts had seemingly manipulated the admissibility of evidence through broad or narrow applications of the “general acceptance” or “scientific community” factors.(61) It added: “[I]n its pristine form the general acceptance standard reflects a conservative approach to the admissibility of scientific evidence that is at odds with the spirit, if not the precise language of the Rules.”(62) Instead, the Third Circuit, like the Second, adopted a “reliability” test.(63) Judge Becker’s decision referred to Judge Weinstein’s and Prof. Berger’s list of reliability factors including:
- whether the novel technique relates to more established modes of scientific analysis;
- Whether there is scientific literature dealing with the techniques;
- Whether the technique has been exposed to critical scientific scrutiny;
- The extent of the proposed experts’ qualifications;
- The nonjudicial uses of the technique;
- The frequency with which the technique leads to erroneous results;
- Whether the technique’s errors are objectively verifiable;
- Whether the technique has been admitted in other cases.(64)
- The Third Circuit then held the trial court must determine whether the proposed scientific evidence might confuse or mislead the jury.(65) The court noted scientific testimony based on data the jury can observe is less likely to mislead it, i.e. the “show and tell” argument.(66)
It recognized the split of authorities on the admissibility of such testimony.(67) Having set forth the above analysis the court then overturned the trial court’s per se exclusion of the defendant’s proposed expert testimony on the unreliability of eyewitness identification.(68) The court said the defendant should have the opportunity to make an offer of proof addressing the presence of specific factors which researchers have found to impair the accuracy of eyewitness identification.(69)
Notwithstanding Williams and Downing, the vast majority of federal circuit and other courts adopted Frye as the standard of admissibility in their jurisdictions.(70) To resolve conflicts among the appellate courts, the United States Supreme Court eventually decided to review a Ninth Circuit decision, Daubert v. Merrell Dow Pharmaceuticals.(71)
The mothers of Jason Daubert and Eric Schuller alleged they had taken Bendectin during pregnancy which caused their sons’ limb reduction deficits. Bendectin is an FDA approved drug designed to reduce so-called “morning sickness” during pregnancy. Plaintiffs proposed that their experts would testify that Bendectin has a chemical structure similar to known teratogens,(72) that it causes injuries to animal cells in test tubes and to animals in laboratories and that reanalysis of published epidemiological studies showed a statistical correlation with birth defects. From this the experts opined that Bendectin similarly could or did cause injuries to humans. Merrell Dow argued the published epidemiological studies showed that among hundreds or thousands of people exposed to Bendectin there is no significantly greater incidence of the injuries claimed by the plaintiff than among the general or unexposed population.
The district court identified the Ninth Circuit’s formulation of the general acceptance test as controlling.(73) It noted the many prior rulings that there is an insufficient factual basis for an expert to conclude that Bendectin causes birth defects.(74) The court also referred to Judge Weinstein’s influential decision in the Agent Orange case,(75) which applied the Williams test,(76) while holding epidemiological evidence paramount in a toxic tort case.(77)
The district court concluded that expert opinion not based on epidemiological evidence is not admissible to establish causation.(78) The court rejected plaintiffs’ efforts to recalculate the results of existing studies so as to establish causation.(79) It said plaintiffs’ evidence at most showed Bendectin “could possibly have caused” the injuries and granted summary judgment for Merrell Dow.(80)
The Ninth Circuit Court of Appeals affirmed.(81) It reiterated its reliance on the general acceptance test.(82) The court found reanalysis of epidemiological studies generally accepted by the scientific community only when subjected to verification and scrutiny by others in the field.(83) It held the plaintiffs’ unpublished reanalysis did not comply with the standard.(84)
The Supreme Court issued a writ of certiorari.(85) Twenty-two amici curiae filed briefs including The American Association for the Advancement of Science and The National Academy of Sciences, ad hoc groups of scientists and law professors, the Carnegie Commission on Science, Technology and Government, industry and trade groups, legal associations and tort reform advocates.
The Supreme Court noted it had previously held when interpreting FRE 402 that “…the common law knowledge continues to exist…”(86) and was entirely consistent with Rule 402’s general requirement of admissibility.”(87) However, in Daubert the court found the absence of any reference to Frye and the otherwise “permissive backdrop” of the Rules to indicate that the Rules’ drafters did not intend to incorporate the “austere” and “incompatible” general acceptance standard.(88) Accordingly, it held Frye was superseded by the enactment of the Federal Rules of Evidence.(89)
However, it then remained to decide what evidentiary standard replaced Frye. The Court said Rule 702 “clearly contemplates some degree of regulation” of the content of expert testimony.(90) The expert must testify about “scientific … knowledge”.(91) Quoting Webster’s, the Court said knowledge “applies to any body of known facts or any body of ideas inferred from such facts or accepted as truths on good grounds.”(92) It also quoted from the amicus curia brief of the American Association for the Advancement of Science and the National Academy of Sciences: “Science…represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.”(93) Therefore, “scientific knowledge is an assertion or inference derived by the scientific method.”(94)
The Court noted Rule 702 demands expert testimony “assist the trier of fact.”(95) This language “goes primarily to relevance”,(96) and the Court adopted Judge Becker’s description of this as a “fit” requirement.(97) Scientific testimony might fit for some purposes but not others.(98) For example, the phases of the moon may be valid scientific evidence about whether a certain night was dark but not whether a person behaved irrationally that night.(99) The Court concluded this part of the decision by observing that the Rule 702 “helpfulness” standard requires a valid scientific connection to the pertinent issue.(100) The Court did not explain why it was necessary to incorporate a relevance standard into Rule 702 in addition to that in Rules 401-403.
Four nonexclusive “factors” guide trial courts when assessing whether the reasoning or methodology underlying the proposed testimony is scientifically valid and applicable to the facts.(101) These factors parallel the analysis set forth in United States v. Williams and United States v. Downing:
- whether the expert’s theory or technique can be (and has been) tested;
- whether the theory or technique has been subjected to peer review and publication;
- whether the theory or technique has an acceptable known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation; and
- whether the theory or technique has attained “general acceptance.”(102)
The Court explained that while peer review and publication is not “dispositive” it is relevant.(103) Moreover, a “known technique that has been able to attract only minimal support within the relevant scientific community” may be viewed skeptically.(104)
The Court also imposed on trial courts the “gatekeeper” role: “The trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”(105) This requires “…a preliminary assessment of whether the reasoning or methodology is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts” of the case.(106) The Court expressed confidence that federal judges could fulfill this role.(107)
The Court concluded by addressing two underlying concerns of the parties and amici. Merrell Dow was apprehensive that abandoning the general acceptance test would result in a “free-for-all” of “absurd and irrational pseudoscientific assertions”.(108) The Court was sure that vigorous cross-examination, presentations of contrary evidence and proper jury instructions will refute “shaky but admissible evidence.”(109) Moreover, the trial court can dispose of scientifically unsupported cases under Rules 56 or 50(a) before they get to the jury.(110)
The Court rejected the concerns of the petitioners and certain amici that the gatekeeping role for the trial judge will “sanction a stifling and repressive scientific orthodoxy” and be “inimical to the search for the truth.”(111) The Court said there are important differences between the quests for truth in the courtroom and in the laboratory.(112) Science may benefit from hypotheses which ultimately prove incorrect.(113) “Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment often of great consequence about a particular set of events in the past.”(114) The Court characterized this as the balance struck by the Federal Rules of Evidence.(115) It reversed and remanded because the district court and circuit court had focused almost exclusively on the “general acceptance” standard.(116)
Chief Justice Rehnquist wrote an opinion concurring in part and dissenting in part, in which Justice Stevens joined. The Chief Justice agreed that the Frye rule did not “survive the enactment” of the Federal Rules.(117) He objected to the majority’s “general observations,” including the four factors, as “vague and abstract.”(118) The Chief Justice concluded by raising questions about whether trial judges had the ability to become “amateur scientists” in fulfilling their gatekeeping duties.(119)
In comparing the Daubert and Frye decisions it is initially apparent both courts had the same goal in mind. The Frye court intended to allow scientific evidence which is “demonstrable” and to exclude science evidence which was merely “experimental.”(120) The Supreme Court insists that admissible scientific evidence be “reliable,”(121) even if it means occasionally excluding “authentic insights and innovations,”(122) in the interest of rejecting “conjectures that are probably wrong.”(123) Yet, where Frye defers to the consensus of the scientific community to reach this goal, Daubert provides litigators and judges the opportunity to debate the testability, error rate and existence of standards pertaining to a scientific theory or technique.
The Daubert approach may present some complications in its application. If science is, as the Court quotes, “a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement,” then testability, error rate, standards, and peer review are apparently the major reasons why the scientific community comes to accept that a theory is valid or a technique reliable. For example, the American Association for the Advancement of Science and the National Academy of Science in their amici brief said:
A new theory or explanation must generally survive a period of testing, review, and refinement before achieving scientific acceptance. This process does not merely reflect the scientific method, it is the scientific method.(124)
The Carnegie Commission on Science, Technology, and Government wrote:
[F]or a theory on which an expert relies to be deemed “scientific” (1) it must set forth a hypothesis that is capable of being proven false through observation or experimentation, and (2) the data produced through this testing must be capable of replication.(125)
Accordingly, it seems the general acceptance test and the other three Daubert factors should be flip sides of the same coin. If a scientific theory is testable, has a known error rate, and is subjected to professional standards and peer review then it should be accepted by the scientific community. (Unless of course, it is just plain wrong. For example, the theory that the moon is made of green cheese may well meet the other Daubert factors, i.e. it can be tested, etc., however, no rational scientist accepts it). Conversely, if a scientific theory does not meet the other Daubert criteria, a court should view skeptically the argument that it has attained general acceptance. Upon a closer look, the scientific community which has accepted the theory may well be just a fringe group of partisans.
The new Daubert factors could be subject to manipulation as is the general acceptance test. For example, publication in a scientific or technical periodical is no guarantee that a theory has received a thorough review by a group of qualified experts. As one commentator has noted, there are thousands of such publications many of which represent tiny groups outside of mainstream scientific thought or desperate for articles.(126) However, to a judge or jury the publication may sound impressive.
Similarly, determining what constitutes testability is not a clear cut matter. (Keep in mind that Daubert may require only that the theory be “testable”, not that it actually be tested). Thus, is it sufficient that the expert witness say his theory is testable, or must he test it, or must there be substantial testing by independent entities not involved in the forensic process? Moreover, what evidence of an error rate of standards demonstrates reliability? Who verifies the error rate or establishes the standards?
In United States v. Williams, the Second Circuit cited the certification procedures of the International Association of Voice Identification in support of voice spectrography’s reliability.(127) However, most of the members of this group were not scientists, but police officers trained by the tiny core of scientists who supported spectrography.(128) Numerous commentators have criticized the Daubert factors as vague and abstract (to use the Chief Justice’s words) and as slippery in the application as the Frye standard.(129)
Courts which abandon the Frye standard must be vigilant to avoid the possibility that a case will turn on novel scientific evidence which the scientific community ultimately rejects. For example, in Wells v. Ortho Pharmaceutical Corp.,(130) the trial court allowed expert testimony that spermicide use had caused birth defects. The expert relied in part on an article in The Journal of the American Medical Association even though its authors cautioned that the results of the studies were tentative and needed confirmation.(131) The trial and appellate courts upheld a jury verdict of $5.1 million for plaintiff over defendant’s objection that the scientific evidence was unreliable.(132) One year after the verdict, the article’s authors said that subsequent research had failed to corroborate their results.(133)
Frye‘s opponents argue that the general acceptance standard keeps out “authentic scientific insights.” They frequently point to examples of such insights which debunked established scientific or popular motions, such as Galileo’s reorganization of the solar system or Columbus’ “discovery” of America.(134) However, these opponents fail to acknowledge that most scientific ideas ultimately prove unfounded.(135) The Daubert analysis should not provide a window of admissibility for new but wrong ideas which window eventually closes only when the scientific community over the course of months or years demonstrates the fallaciousness of the theory. Consider for example, the proof of the so-called cold fusion theory which was announced in a torrent of publicity. The scientific community reviewed the proof, unsuccessfully attempted to replicate the test, and eventually rejected the proof en masse.(136) As one court has said:
…[a] courtroom is not a research laboratory. The fate of a defendant in a criminal prosecution should not hang on his ability to successfully rebut scientific evidence which bears and “aura of special reliability and trustworthiness”, although in reality the witness is testifying on the basis of an unproved hypothesis in an isolated experiment which has yet to gain “general acceptance” in its field.(137)
While civil actions lack some of the constitutional concerns of a criminal prosecution, it seems similarly true that a lawsuit should not turn on speculative expert testimony which is easy to say but difficult to refute.
Notwithstanding these potential shortcomings, the Daubert decision has spawned an enormous reaction. In the last three years there have been more than 150 articles in legal periodicals analyzing it, an average of over four per month.(138) There have been a slew of rulings by federal courts applying and expounding upon it.
The Third Circuit, in an eighty-two page decision, In Re Paoli Railyard Litigation,(139) found its recent prior rulings consistent with Daubert and engrafted several additional factors from those decisions onto the Supreme Court’s analysis.(140) Twenty-three plaintiffs alleged a variety of personal injuries and property damage arising from the presence of PCBs at the nearby railyard. The district court had previously dismissed their claims for lack of admissible scientific proof. The Third Circuit had reversed and remanded. The district court again dismissed. On the second appeal the circuit court added these Downing factors to the Daubert analysis:
- the relationship of the technique to methods which have been established to be reliable;
- the qualifications of the expert witness testifying based on the methodology; and
- the non-judicial uses to which the method has been put.(141)
In effect, the more qualified the expert, the more reliable his or her testimony.(142) Moreover, if the expert’s theory or technique was developed or has been used outside of litigation it is more reliable.(143) The Third Circuit then applied these factors to see whether plaintiffs’ scientific evidence was admissible. Ultimately, the Court affirmed in part and reversed in part, remanding the case again for further proceedings.(144)
The Paoli Railyard decision highlights another consequence of the Daubert decision. Scientific evidence may now be more demanding than under the general acceptance test. For example, in Stanczyk v. Black & Decker, Inc.,(145) the trial court excluded the testimony of plaintiff’s engineering expert in part because the expert had not developed drawings or a testable prototype of his alternative design of an allegedly defective power saw.(146) Plaintiff protested it would cost $20,000-40,000 to do so. The court agreed but ruled “Daubert requires these expenditures.”(147)
On remand of the Daubert case, the Ninth Circuit also embellished the Supreme Court’s decision.(148) The circuit court undertook its analysis very reluctantly. It commented that in the post-Daubert world federal judges “…face a far more complex and daunting task.”(149) The court complained that it was “certainly no match for any of the witnesses whose testimony we are reviewing.”(150) Nevertheless, it said a significant factor to be whether the experts:
are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.(151)
The court said testimony based on “legitimate, preexisting research unrelated to the litigation” constitutes the “most persuasive” grounds for deciding an expert’s opinions found on the scientific methodology.(152) The court also reiterated its prior reliance on peer review noting that no scientific or medical journal had published plaintiffs’ experts’ studies.(153) After taking a “deep breath”(154) the court again held that under Daubert plaintiffs did not have sufficient evidence to get to a jury and again affirmed the summary judgment.(155) Plaintiffs again petitioned for writ of certiorari which the Supreme Court denied on October 2, 1995.(156)
Although in Daubert the Supreme Court limited its opinion to scientific testimony,(157) it has since suggested that the decision may control testimony based on the “soft” sciences, such as psychology.(158) The federal courts including the First Circuit have applied the Daubert analysis and their own various permutations to a variety of other topics of expert testimony: hospital liability under the Emergency Treatment and Active Labor Act;(159) economic damages due to antitrust activity;(160) economic damages for lost income due to personal injury;(161) and adequacy of a warning on a tire.(162) On the other hand, courts have also declined to apply Daubert to areas of non-scientific expert testimony such as the hazards of unguarded ship hatch openings,(163) design engineering,(164) arson,(165) hedonic damages,(166) construction,(167) and payrolls.(168)
All in all, the most significant development of the Daubert decision may not be the adoption of the four factors in lieu of the Frye test, but the imposition of the “gatekeeper” role on the district courts. This role seems to apply to all areas of opinion testimony, not just scientific. The courts have jumped into that role with vigor. One survey of initial post-Daubert products liability decisions found that two thirds of those citing Daubert did so while excluding expert testimony.(169) Few courts seem to express the doubts of the Ninth Circuit as to judicial ability to assume this role.
It remains to be seen whether the Daubert standard overturns years of settled jurisprudence. The ruling is not limited to “novel” scientific evidence, it apparently applies to all kinds of scientific evidence regardless of how long courts have been admitting or rejecting it. For example, the Fifth Circuit and several other courts have recently held that under Daubert, polygraph evidence almost universally rejected since the Frye decision may now be admissible at least for some purposes such as impeachment.(170) The Fifth Circuit lifted its per se ruling against admission of polygraph results without deciding the tests were valid. Opinion evidence which courts have accepted for years may now be subject to attack under the other Daubert factors, e.g., the validity of chiropractic medicine or lost earning projections.
To date, the courts of at least sixteen states have adopted the Daubert test.(171) Seven have rejected it or decided to retain their version of the Frye standard.(172) In People v. Leahy, the California Supreme Court declined to overturn its formulation of the Frye standard in favor of the Daubert analysis.(173) Leahy had been convicted of driving under the influence of alcohol. He appealed the admission of police officers’ testimony respecting the horizontal gaze nystagmus (HGN) field sobriety test. Defendant contended the HGN test was a “new scientific technique” which required proof under California’s version of the general acceptance test, People v. Kelly.(174) The Leahy case attracted a member of amici curiae, including the District Attorney for the City of Los Angeles, because of its potential impact on the admissibility of DNA evidence.
The California Supreme Court reviewed the reasons set forth in People v. Kelly for applying the general acceptance standard.(175) These are the same widely cited reasons summarized by Prof. Giannelli.(176) In Kelly the court had also said once an appellate court affirms in a published opinion the admission of evidence derived from a new technique, that decision becomes precedent controlling subsequent trials.(177)
The Leahy court reviewed the Supreme Court’s Daubert analysis and then compared the Federal Rules of Evidence to the California Evidence Code. It found the state provisions to be “the functional equivalent” of F.R.E. 702 and noted that nothing in them or their legislative history indicates a general acceptance standard was adopted.(178)
The court acknowledged the “conservative” nature of the general acceptance standard:
The courts are willing to forego admission of such techniques completely until reasonably certain that the pertinent scientific community no longer views them as experimental or of dubious validity. This all-or-nothing approach was adapted in full recognition that there would be a ‘considerable lag’ between scientific advances and their admission as evidence in a court proceeding.(179)
Daubert did not convince the California Supreme Court to abandon this approach. It reiterated that: “it may be preferable to let admissibility questions regarding new scientific techniques be settled by those persons most qualified to assess their validity.”(180) It quoted one of the many commentators:
The Frye rule ensures that judges and juries with little or no scientific background will not attempt to resolve technical questions on which not even experts can reach a consensus.(181)
The court observed that some of Frye‘s critics seem to state, at least in the criminal context, that the general acceptance standard may be too liberal in allowing admission of prosecution evidence.(182) Ultimately, it held California state courts should continue to apply that standard.(183)
The Massachusetts Supreme Judicial Court has accepted “the basic reasoning of the Daubert opinion because it is consistent with our test of demonstrated reliability.”(184) The court allowed that the proponent of scientific evidence may demonstrate the reliability or validity of the underlying scientific theory or process by means other than general acceptance.(185) Nonetheless, the court anticipated that “general acceptance in the relevant scientific community will continue to be the significant, and often the only issue.”(186)
Rhode Island Law
Like the Federal Rule, our Rule 702 provides for the admission of opinion testimony by a qualified expert: “[i]f scientific, technical or other specialized knowledge will assist the trier of fact.”(187) Likewise, there is no definition of what constitutes “scientific knowledge”, but long before Rhode Island adopted its Rules, it had a substantial body of pertinent common law. The Advisory Committee believed that the adoption of Rule 702 did not change Rhode Island’s common law.(188) However, in more recent Supreme Court opinions the court has declined to state how Rule 702 affects the admissibility standard.(189)
That common law dates back at least to the State v. Nagle(190) decision, twenty years before Frye. In Nagle the prosecution offered the testimony of a medical examiner to prove the alleged murder victim had not shot himself as the defendant alleged. The medical examiner testified he had experience with gunshot wounds self-inflicted or not and had otherwise studied such wounds. He said it was the “invariable rule” that the greater part of the burn from the gun’s muzzle flash occurred on the same side as the hammer. Arguably, this made it “practically impossible” for the deceased to have held the gun in the position indicated by his singed hair and the bullet’s path.
The defense objected to the testimony including the examiner’s description of experiments he did with the alleged murder weapon and other guns. The Court affirmed the admission of the testimony and the experiment.(191) It acknowledged the result would be different if the experiments had been conducted only on the subject weapon and by someone other than an expert:
For, in such a case, the entire value of the testimony would depend upon the accuracy, skill and honesty of a particular person regarding a particular and isolated transaction, with no opportunity on the part of the defendant to contradict it.(192)
This appears to be the court’s earliest statement that scientific testimony must be verifiable before it is admissible.
Thirty-six years later, in McGovern v. Michael,(193) the Supreme Court further elaborated on the basis of expert testimony. It rejected the testimony of a constable as to the market value of dry goods he auctioned where he acknowledged he made no estimate of the values of individual items but instead approximated the value from the overall volume of the goods.
An opinion of market value must be founded on facts and not conjecture. Where there is substantially no evidence upon which to based such an opinion, then no opinion can be given however competent the witness may be. [The expert’s opinion] of market value in the instance case rests on mere generalities… An examination of all the evidence on this point convinces us that [the expert’s] testimony left the vital issue of market value in the realm of conjecture and not of fact; and recovery cannot be based on conjecture.(194)
Then, in State v. Gregoire, (195) the Supreme Court endorsed the “general acceptance” test in dicta but cited to Wigmore and not the Frye decision.(196) The state introduced evidence of the results of an “Alcometer” test to prove the defendant was intoxicated. The Court reversed the introduction of the results holding there was insufficient evidence that the officer who administered the test was an expert in the operation of the Alcometer.(197) The Court wondered about the Alcometer’s scientific reliability but declined to decide the question. It did point out “…that judicial reliance upon such a device depends upon general acceptance of its reliability by experts in the relevant scientific field”.(198)
That same year the Court rejected the argument that once a witness qualifies as an expert he need not lay the foundation for his opinion. In Etoile v. Director of Public Works,(199) the Court held that to allow an “intelligent cross-examination,” the opposing party was entitled to hear the reasons or factors upon which the expert based his opinion.(200)
The Etoile decision was the precursor to the court’s own articulation of the trial court’s “gatekeeper” rule in Morgan v. Washington Trust Co.(201) In Morgan, the court addressed the trial court’s decision whether to admit an expert architect’s testimony respecting latent dangers of an entranceway. It said:
….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 (emphasis added).(202)
Thus, the Rhode Island Supreme Court anticipated the United States Supreme Court by twenty-four years.
In 1971 the Rhode Island Supreme Court first faced the issue of the admissibility of lie detector test results.(203) The Court did so again without mentioning the Frye case but instead quoted the “general acceptance” standard from its decision in State v. Gregoire(204) and the citation therein to Wigmore.(205) The Court then reformulated the standard:
Evidence as to the result of such tests is to 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 qualification or expertise of the person who operated the devise and interpreted its results.(206)
The Court did not rule on the admissibility of the evidence because the record did not disclose testimony addressing the guidelines the court set forth.(207) It reversed and remanded for a new trial.(208) This decision was particularly significant because it previewed the argument that for scientific evidence to be admissible the proponent must show the underlying theory to be valid and the technical application of the theory must be reliable.
In Alterio v. Biltmore Construction Co.,(209) the court set forth additional reasons for the gatekeeping role. It noted an expert opinion “must be predicated upon facts legally sufficient to form a basis” for that opinion.(210) The trial court must first hear and consider the facts underlying the expert’s opinion.(211) The Court overturned a judgment for plaintiff finding the trial court had improperly allowed the jury to consider an insufficiently supported expert opinion.(212)
The Court again used the general acceptance language in State v. Benton.(213) There, the state’s ballistics experts testified to the results of certain tests and said they showed conclusively that three bullets came from the murder weapon and no other. Defendant argued that the expert’s opinion of the conclusiveness of the tests was irrelevant as he was merely expressing his appraisal of his own skills. The Court rejected this argument stating that the expert’s testimony “…expressed the degree of credibility or validity that ballistics experts in general attribute to the method he used.”(214) The Court said the testimony was probative of a material issue, i.e., the weight to be accorded to the expert’s opinion.(215) The Court did not seem to state that general acceptance determined the admissibility of the testimony. Notably, however, defendant had not objected to admission of the test results or the other aspects of the expert’s interpretation of them.
Four years later, the Court acknowledged that the state of science and the legal process may be such that a claim cannot be proven in court. In Seitz v. L&R Industries, Inc.,(216) an employee made a workers compensation claim arguing that her rigid personality characteristics had been aggravated by conditions at work and became an obsessive compulsive personality disorder. Justice Weisberger observed:
It is all very well to say that the adversary system will expose the difference between the genuine neurotic and the malingerer. We have great fears that neither the science of psychiatry nor the adversary judicial process is equal to the task on the type of claim here presented.(217)
The Court cited two scientific treatises for lack of “hard factual information” about the symptoms of obsessive compulsive disorder.(218) It then quoted extensively from the claimant’s expert’s testimony including:
Q: So that the basis of your opinion of her inability to work is because of her expressions of fear of the assignment?
A. Yes. And being able to cope in other words.
Q. And the basis for your opinion is that she says she is afraid to go to work?
The Court then said:
The foregoing analysis makes it very difficult to perceive a scientific empiricism at work. The lack of any objective standard leaves little choice to the psychiatrist except to give complete credence to the patient’s statement of her own disability.(219)
Ultimately, the Court concluded the employee had not sustained a legally compensable injury.(220)
Then, in 1985, the Supreme Court first cited and analyzed the Frye decision. State v. Wheeler(221) may be the court’s most significant opinion on expert testimony. The issue was the admission of voice spectrography to prove defendant had made a phone call to the Cranston Police Department. The trial court conducted a two week pretrial voir dire. The state presented testimony from a professor of audiology at Michigan State University, a doctor in acoustic phonetics, a lieutenant in the Michigan State Police and a local professor of linguistics. The state’s experts described their own and others’ work in the field of voice identification and the equipment used. They said voice spectrographs were reliable but depended on the ability of the person conducting the test.
The defense argued that voice spectrography rested on the application of new scientific evidence and that the Frye standard should govern its admissibility. Apparently, the defendants did not or could not present any defense experts on the subject or refer to the scientific materials casting doubt on the validity of voice spectrography.(222)
The Supreme Court acknowledged both criticism of the Frye standard(223) and support for it.(224) It said: “In this jurisdiction, we have been open to evidence of developments in science that would tend to assist the trier of fact.”(225) The Court said also “helpfulness to the trier of fact is the most critical consideration.”(226) Helpfulness depends on whether the opinion has “substantial probative value.”(227)
The court noted that the majority of federal circuit courts which addressed the issue had decided in favor of admitting voice spectrography.(228) It observed that the Supreme Judicial Court of Massachusetts had admitted that evidence under the Frye standard(229) and that the Supreme Judicial Court of Maine had admitted voice spectrography under a state code of evidence “fashioned” after the federal rules.(230) The Court found Maine precedents were consistent with its own, including State v. Benton.(231) The Supreme Court held the trial court properly admitted the evidence and that “…it remained for the jury to reject the voice identification evidence for any number of reasons, including the view that the spectrographic voice identification techniques were either unreliable or misleading.”(232)
Interestingly, while the Supreme Court discusses the Frye standard at length in Wheeler it does not explicitly reject or accept Frye. It cites with approval a Massachusetts decision applying the Frye standard while accepting voice spectrography and concludes by citing an Ohio decision which supports the general acceptance test.(233) Along the way the Court also relies on one of its own decisions applying its formulation of the “general acceptance” test, Powers v. Carvalho.(234)
The following year the Supreme Court approved our Rules of Evidence. Rule 705 reinforces the trial court’s gatekeeping role by requiring that:
Unless the court directs otherwise, before testifying in terms of an opinion, an expert witness shall be first examined concerning the facts or data upon which the opinion is based.(235)
The Advisory Committee noted under the limited discovery of experts then permitted under the rules of civil procedure, that Rule 705 is necessary to “protect the opponent’s right to effective cross examination” by requiring “disclosure of underlying facts or data on direct examination prior to testimony in terms of opinion or inference”.(236) The September 1, 1995 amendments to the rules of civil procedure which allow expert discovery may protect the opponent’s right to effective cross examination. However, Rule 705 still supports the trial court’s duty of insuring that expert opinions have an adequate factual basis before getting to the jury.
The Advisory Committee Notes to Rule 702 state the Rhode Island Supreme Court has “declined to apply the outdated and restrictive (Frye) standard.”(237) Rather,
the Court applied a more open relevancy/helpfulness approach that combines the principles of Rules 401 (relevancy) and 702 (helpfulness) in a Rule 403 – type of balancing. This is consistent with the modern trend under the federal rules.(238)
While the Advisory Committee appears to have accurately predicted a change in the direction of federal law, recent local decisions show it misinterpreted the Rhode Island Supreme Court’s holding in Wheeler.
The Court would explicitly rely on the Frye decision two years later while excluding polygraphic evidence. In State v. Dery(239) the prosecution moved in limine to preclude the results of a polygraph examination administered to the defendant. The tester was a former detective lieutenant with the state police and a certified polygraphist. He testified regarding his own experience in administering thousands of examinations, the facilities of the polygraph machine, the procedures used and the physical reactions tested. The tester said be believed polygraph testing had an accuracy rate of 85 to 95 percent based on his experience and studies he had read. The state presented Leonard Saxe, a doctor of psychology who also had extensive experience in polygraph examinations and who had published articles and testified before Congress on the topic. He said that there was no evidence that lying or deceptiveness is related to the physical changes measured by the polygraph machine.
Justice Weisberger first cited and discussed the Frye case and the general acceptance standard.(240) He noted that since Frye, the “overwhelming weight of authority” has rejected the admissibility of such evidence.(241) He quoted the New Hampshire Supreme Court that “…these tests have not yet attained sufficient acceptance as an accurate and reliable means of ascertaining truth or deception.”(242) The court went on to note its openness to scientific tests or experiments.(243) However, it concluded that based on Dr. Saxe’s testimony “…we are compelled to align our position with the great majority of jurisdictions that have decided against the admissibility of [polygraph] evidence.”(244) This decision endorses the Frye test by name and by application of its form of analysis.
Six months later Justice Weisberger wrote another important decision, State v. Walters.(245) In Walters, the prosecution attempted to prove the trajectory of a bullet through the testimony of a detective who ran a string from a car seat where the victim was shot through the hole in the windshield and then extended the string out another eight feet. Purportedly, at that point the string was at the height of the defendant’s shoulder where he allegedly fired the fatal shot.
The Court said that admissibility of this evidence depended on whether the test had “sufficient indicia of reliability so that it will contribute to the search for truth as opposed to exercising its potential to mislead the jury.”(246) The Court said the trial justice “must” make that determination.(247) Moreover, the judge must keep in mind the “natural tendency” of jurors to follow the testimony of perceived experts.(248) The Court noted a subsequent qualified expert refuted the idea that a bullet’s trajectory through glass could be determined with a string.
The Court observed the case was tried before the state rules of evidence were effective, but noted that the result would be the same under Rule 702.(249) Citing United States v. Williams, the Court said the criteria for admissibility under Federal Rule 702 include “probativeness, materiality, and reliability of the evidence, on the one side, and any tendency to mislead, prejudice, or confuse the jury on the other…”(250) The Court found admission of the trajectory “test” sufficiently prejudicial to require a new trial.(251)
In State v. Gomes,(252) the Court relied on Rule 403 in excluding the admissibility of expert testimony. That Rule provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.(253)
In Gomes defendant’s expert proposed to testify about the unreliability of eyewitnesses identifications of an alleged murderer. The Court said the expert’s “blanket assumptions” about the effect of stress on such identifications would confuse the issues and mislead the jury.(254) The Court affirmed the exclusion of the testimony.(255)
More recently the Court quoted language akin to “general acceptance” while again applying Rule 403 to scientific testimony. In State v. Gardner,(256) defendant’s expert psychologist proposed to tell the jury about the results of the Minnesota Multiphasic Personality Inventory (MMPI) which he administered to defendant. The trial court excluded the test results as unreliable. The expert said the MMPI has been in existence since 1939 and is “standard procedure” for psychologists in diagnosing patients.(257) The Court said other jurisdictions had found it reliable, specifically citing the California Supreme Court’s decision, People v. Stoll,(258) which applied California’s version of the “general acceptance” test in admitting such evidence.(259)
This past term the Court has rendered several decisions on expert testimony. These decisions affirm that Rhode Island trial courts must exercise their gatekeeper responsibilities in deciding on the admissibility of expert testimony. The Court also indicated that the general acceptance test is the prevailing standard in Rhode Island while declining to state whether it would adopt the Daubert analysis and factor if issue is squarely presented. Nonetheless, the Court may have given a strong hint that it will allow use of the other Daubert factors in our trial courts.
In State v. Odell,(260) the defendant appealed the refusal of the trial court to admit into evidence his favorable polygraph results. He argued that State v. Dery had been overturned by Daubert. In a per curium decision the court affirmed the trial court’s refusal:
In Dery, this court reviewed the testimony of several experts before it concluded that test results of polygraph examinations have not been established as scientifically reliable. [citation omitted]. By so deciding, Rhode Island joined the majority of jurisdiction holding polygraph results inadmissible. That decision was based not only on the Frye standard, but also on the inaccuracy of the polygraph test. Our holding in Dery is therefore consistent with the opinion of the Supreme Court in Daubert.(261)
In State v. Morel,(262) the Court addressed the admissibility of DNA evidence to establish that seminal fluid found in a rape victim had come from the defendant. The defendant objected to the state’s methodology, not the underlying theory that DNA testing could identify a culprit. Specifically the defendant argued that the state’s method of determining DNA matches, i.e. the so-called “binning method,” and the particular statistical analysis of those matches were unreliable. One prosecution witness, an FBI agent testified that the defendant’s DNA matched the samples taken from the victim and that under its form of statistical analysis, the “product method”, the odds of a randomly selected Caucasian’s DNA matching the forensic sample were 1:1000. The agent said that under the statistical method favored by the defendant, the “ceiling principle,” the odds of a random match were 1:550. The trial court allowed the evidence because the proposed methodology was “based upon accepted, well accepted principles and that the method is reliable and is generally accepted by those in the field of genetics.”(263) Thus, the trial court apparently found the evidence admissible under both Frye and Daubert. On appeal defendant argued the state’s evidence was inadmissible under either standard, and the state said the testimony was proper either way.
The Court reviewed at length the scientific theory underlying the use of DNA evidence and the techniques used to obtain the evidence. The Court applied its Wheeler analysis. The Court said in a footnote: “Wheeler is consistent with Daubert… The reasoning and guidelines of which we find helpful and illuminating.”(264) The Court said the trial justice properly admitted the DNA evidence and agreed with him that the “methods used to determine the statistical probabilities of a match derived from DNA analysis affect the weight to be accorded DNA evidence, not the admissibility of the evidence itself, and the determination of that weight is a question for the jury.”(265) The Court went on to say:
We can conclude, therefore, that provided a defendant is afforded the opportunity to cross examine the experts, to question the validity of their conclusions, and to disclose the potential weaknesses of the preferred DNA analyses, the results of such analyses may be presented to the jury.(266)
The Court observed that in preserving and testing DNA evidence it was “crucial” that police and scientists carefully attend and handle the samples to defend chain of custody issues and to prevent mislabeling and contamination.(267) Finally, the Court said it was “critical” that the laboratory carrying out the DNA analysis have a demonstrated record of proficiency and quality control.(268)
In Kelly v. Marcantonio,(269) the court considered whether repressed recollections constitute an unsound mind disability which under R.I.G.L. §9-1-19, would toll the running of the statute of limitations. Justice Bourcier wrote for the Court that on a case by case basis the trial justice could decide that the plaintiff’s repressed recollection could toll the statute after hearing medical or scientific testimony.(270) Judge Bourcier noted repressed recollection had numerous “advocates and dissenters, believers and nonbelievers.”(271) Citing State v. Wheeler, the Court said the expert testimony must be of substantial probative value.(272) More specifically, the judge must decide whether the repressed recollection “constitutes scientifically accepted and valid theory.”(273) This dictum indicates the Supreme Court may want novel scientific testimony to meet both the general acceptance standard as well as criteria akin to the other three Daubert factors.
Most recently in State v. Quattrochi, (274)the Supreme Court held that Justice Bourcier erred as a Superior Court judge in failing to hold a preliminary hearing outside the presence of the jury on the admissibility of repressed recollection. The defendant was convicted of two counts of sexual assault. The nineteen year old victim testified that she had flashbacks recollections of defendant molesting her as a child. Judge Bourcier permitted a psychologist to testify that the victim had suffered post-traumatic stress disorder from these incidents resulting in repression of her recollection of them. Chief Justice Weisberger reviewed the numerous academic articles and judicial opinions critical of expert testimony on repressed and hypnotically refreshed recollection. The court said that it would not rule on the reliability and admissibility of the expert testimony.(275)
However, the court did state that when such testimony is offered in a criminal or civil trial:
the trial justice should exercise a gatekeeping function and 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.(276)
Chief Justice Weisberger then referred to Daubert as a “landmark case”(277) and listed the four factors the United States Supreme Court set forth to guide the admissibility of expert testimony. Interestingly, he then notes:
Our citing [Daubert] does not indicate that this court has abandoned the test enunciated in [Frye] as analyzed in [Wheeler] and applied in [Dery]. We shall leave to a later day the emphasis to be placed on general acceptance as set forth in both Frye and Daubert as opposed to the three other factors set forth in Daubert.(278)
Over Justice Flanders’ dissent, the Court held that under Rule 104(c) the trial courts must hold the preliminary hearing outside the presence of the jury.(279) It said that any motion to exclude or suppress evidence in a criminal case is sufficient to trigger the right to a preliminary hearing to determine admissibility.(280)
Justice Flanders agreed that the “better practice” may be to hold a hearing on the admissibility of novel scientific evidence outside the presence of the jury.(281) However, he observed the defendant had not requested such a hearing, choosing to rely on legal memorandum and accordingly, had waived whatever rights he had to the hearing.(282)
Thus, in Rhode Island our Supreme Court had imposed the gatekeeper responsibility on trial courts long before the United States Supreme Court. Our version of Rule 705 codifies and reinforces that responsibility. However, the question of whether the Frye or Daubert standard will govern admissibility of scientific evidence is much less clear. There are decisions in which our Supreme Court relies exclusively on the general acceptance test and others in which it variously applies tests akin to the other Daubert factors. For example, in State v. Nagle the court observed an expert’s opinion must be objectively verifiable. In Seitz v. L & R Industries, the court criticized expert testimony which referred to no professional standards. In State v. Wheeler, the purported existence of known error rates supported admission of the expert opinion. There are decisions in which the court applies Rule 702 alone in deciding the issues and others in which it relies only on Rule 403. Most recently, the Court has referred approvingly to Daubert while deferring whether to replace general acceptance with the new multifactor test.
Several consistencies run through the Court’s decisions. Whether the relevant scientific community generally accepts a scientific theory or technique is still the dominant and, occasionally, the controlling test. When science accepts the proposed testimony, the Court holds that criticisms of its testability, error rates, etc., go to cross examination and the weight of the evidence, not admissibility. If the scientific community has rejected the proposed evidence, the Court seems content to rely exclusively on the lack of general acceptance. Where the consensus, if any, of the scientific community does not clearly appear in the record, the Court has anticipated and considered factors substantially similar to those in Daubert. Moreover, under Rule 403 our Court has applied the same relevance or “fit” test which the United States Supreme Court seems to incorporate in Rule 702.
This seems to leave open the question of whether the proponent of a scientific theory or technique should be required to first show whether there is general scientific acceptance or may circumvent that proof. Moreover, if the opponent shows the theory or technique is highly controversial among those who are in the best position to judge it, should any showing of purported “reliability” get the evidence into the record? If so, this could mean that unproven scientific evidence can be admitted so long as the scientific community has not yet rallied against it. Unfortunately this scenario presents the prospect that a defendant may be convicted or a party may lose a civil suit based on evidence which the scientific community ultimately proves wrong.
The post-Daubert decisions indicate that expert testimony has entered a whole new world. Some courts apply Daubert to increase substantially the costs and complexity of litigation. Other courts overthrow long established precedent and generally make significant evidentiary decisions less predictable. Whether these are proper interpretations of Daubert may remain for the United States Supreme Court to decide. However, Daubert clearly cannot stand for the proposition that a handful of lawyers and a judge acting as “amateur scientists” can debate a scientific theory with a couple of experts for a few hours in a courtroom and prove the scientific community is wrong. If this proposition is true then science itself is inherently unreliable.
Assuming the scientific process is as scientists and the Daubert amici describe, then the general acceptance standard and the other Daubert factors should usually be two different methods of arriving at the same conclusion. If the testimony indicates different result of the two standards the trial court must be alert to the possibility that one side or both is proposing to put unreliable evidence before the jury, e.g. the moon is made of green cheese. At that point, the trial court should hold that the testimony does not meet Daubert‘s “fit” requirement or that the prejudicial affect of the testimony outweighs its nonexistent probative value and exclude the testimony under Rule 403.
In summary, whatever dramatic effect Daubert may have on litigation in federal and other state courts, it does not seem to change the law in Rhode Island. The gatekeeper role is long established. While our Supreme Court has relied most heavily on the general acceptance standard, it has looked in certain circumstances to considerations similar to the other Daubert factors. In these respects, the Court anticipated the Daubert analysis and applied it in our cases.
Thomas Lyons is a partner with the firm of STRAUSS, FACTOR & LOPES, Providence, R.I. The views here are his own and do not reflect the positions of his clients. Mr. Lyons would like to thank Michael Carroll now of Blish & Cavanagh whose research and insights provided great assistance. This article is reprinted with permission from the Rhode Island Bar Journal, January, 1997.
See, e.g., Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994); Hutchinson v. American Family Mortgage Insurance Co., 514, N.W.2d 882 (Iowa 1994); State v. Alberico, 861 P.2d 192 (N.M. 1993); State v. Foret, 628 So.2d 1116 (Ga. 1993); Wilt v. Buracker, 443 S.E.2d 196 (W.Va.Ct.App. 1994).
See, e.g., People v. Leahy, 8 Cal.4th 587 34 Cal. Rptr. 663, 882 P.2d 321 (1994); People v. Wesley, 83 N.Y.2d 417,633 N.E.2d 451 (1994); Franson v. Micelli, 645 N.E.2d 404 (Ill. 1994); Flanagan v. State, 625 So.2d 827 (Fla. 1993).
Faignan, Porter and Saks, “Check your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying about the Future of Scientific Evidence,” 15 Cardozo L.Rev. 1799, 1808n.25 (April 1994).
In Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2708 (1987). The Court overturned the Arkansas Supreme Court and held unconstitutional an Arkansas rule of evidence to the extent it excluded hypnotically refreshed recollection as based on scientific evidence which was not generally accepted. Justice Blackmun wrote for the court that the defendant was entitled to introduce evidence which she could establish as reliable. Interestingly, the court never cites Frye, though it does say: “Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon.”
See, e.g., Green, “Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation,” 86 Nw. U.L.Rev. 643 (1992); Imwinkelried, “The Bases of Expert Testimony: The Syllogistic Structure of Scientific Testimony,” 67 N.C.L.Rev. 1 (1988); Giannelli, “The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later,” 80 Colum.L.Rev. 1197 (1980) (hereinafter “Giannelli”).
See, e.g., United States v. Zeiger, 350 F.Supp. 685, 688 (D.D.C.), rev’d, 475 F.2d 128 (D.C.Cir. 1972) (general acceptance means “widespread; prevalent; extensive, though not universal”) and Commonwealth v. Lykus, 327 N.E.2d 671, 678 n.6 (Mass. 1975) (general acceptance “permits a degree of scientific divergence of views”).
See, e.g., United States v. Addison, 498 F.2d 741, 745 (D.C. Cir. 1974) (Frye requires “general acceptance by scientific community as a whole”) and People v. Williams, 331 P.2d 251, 254 (Cal. App. Dep’t Super. Ct. 1958)(Frye requires acceptance only among “those who he expected to be familiar with its use”).
Compare, Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987); and United States v. Downing, 753 F.2d 1224, 1234-37 (3rd Cir. 1985) (both finding the Rules do not incorporate Frye) with United States v. Smith, 869 F.2d 348, 350-51 (7th Cir. 1989); United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir. 1987) and United States v. Distler, 671 F.2d 954, 961 (6th Cir.) cert. denied, 454 U.S. 827 (1981) (all holding Rules do incorporate to Frye).
See, Berger, supra n.49, citing, Committee on Evaluation of Sound Spectrograms, National Research Council, “On the Theory and Practice of Voice Identification” 10 (1979); see, also, Paul C. Giannelli, “Daubert, Interpreting the Federal Rules of Evidence,” 15 Cardozo L.Rev. 1999, 2006 (April 1994) citing Richard H. Bolt, et al. “Speaker Identification by Speech Spectrograms; Some Further Observations,” 54 J. Acoustical Sec’y Am, 531, 534 (1973) and Barry Hazen, “Effects of Differing Phonetic Contexts on Spectrographic Speaker Identification,” 54 J. Acoustical Sec’y Am. 650, 659 (1973).
See, e.g., Christophersen v. Allied Signal Corp., 939 F.2d 1106, 1115-16 (5th Cir. 1991), cert. denied, 112 S.Ct. 1280 (1992); United States v. Two Bulls, 918 F.2d 56, 60 & n.7 (8th Cir.1990); United States v. Smith, 869 F.2d 348, 351 (7th Cir. 1989); Kropinski v. World Plan Executive Council U.S., 853 F.2d 948, 956 (D.C. Cir. 1988); United States v. Gillespie, 852 F.2d 475, 481-82 (9th Cir. 1988); United States v. Metzger, 778 F.2d 1195, 1203 (6th Cir. 1985); Ellis v. International Playtex, Inc., 745 F.2d 292, 304 n.15 (4th Cir. 1984).
Id. citing Turpin v. Merrell Dow Pharmaceuticals, 959 F.2d 1349 (6th Cir.) cert. denied, 506 U.S. 826 (1992) and Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307 (5th Cir. 1989), modified, 884 F.2d 166 (5th Cir. 1989), cert. denied, 494 U.S. 1046 (1990).
See, e.g., Alan W. Tamarelli, Jr. Note, “Daubert v. Merrell Dow Pharmaceuticals: Pushing the Limits of Scientific Reliability – The Questionable Wisdom of Abandoning the Peer Review Standard for Admitting Expert Testimony,” 47 Van.L.Rev. 1175 (June 1994); Katherine M. Atikian, Note, “Nasty Medicine: Daubert v. Merrell Dow Pharmaceuticals, Inc., Applied to a Hypothetical Medical Malpractice Case,” 27 Loyola of Los Angeles L.Rev. 1513 (June 1994), for a discussion of how the Daubert factors could be manipulated in the context of a medical malpractice claim.
Marc S. Klein, “After Daubert: Going forward with Lessons from the Past,” 15 Cardozo L.Rev. 2219, 2226n.7 (Apr. 1994) citing, Hershel Jick, et al.Vaginal Spermicides and Congenital Disorders, 245 J.A.M.A. 1329, 1329 (1981).
See, Stanczyck v. Black & Decker, 836 F. Supp at 567. (“…The history of engineering and science is filled with finely conceived ideas that are unworkable in practice.”); Randolph N. Jonakait, “The Meaning of Daubert and what that Means for Forensic Science,” 15 Cardozo L.Rev. 2013, 2107 and n.24 (April 1994) citing W.I. Beveridge, The Art of Scientific Investigation 79-80 (Vintage Books 1950) (“Most hypotheses prove to be wrong whatever their origin may be… W.H. George points out that even with men of genius, with whom the birth rate of hypotheses is very high, it only just manages to exceed the death rate.”).
See, Rincon v. United States, __ U.S. __. 114 S.Ct. 41, 126 L.Ed. 12 (1993) [vacating decision below, 984 F.2d 1003 (9th Cir.) which affirmed exclusion of expert testimony on reliability of eyewitness identification based on lack of general acceptance and remanding for a determination in light of Daubert].
United States v. Posada, 57 F.3d 429, 434 (5th Cir. 1995); United States v. Cranby, 895 F.Supp 1354 (D.Ariz. 1995); Ulmer v. State Farm Insurance Co., 897 F.Supp 299 (W.D. La. 1995); contra, United States v. Black, 831 F. Supp. 120, 123 (E.D.N.Y. 1993).
See, n.7, supra and also, e.g. Dupont v. Robinson, 38 Tex. Sup. Ct. J. 852,__ S.W.2d ___ (Tex. 1995); State v. O’Key, 899 P.2d 663, 672 (Ore. 1995) State v. Harrison, 664 N.E.2d 1243 (Ind. 1995); Hutchinson v. American Family Insurance Co., 514 N.W.2d 882 (Iowa 1994).
See, supra, n.8 and also; State v. Riker, 869 P.2d 43 (Wash. 1994); State v. Carter, 524 N.W.2d 263 (Neb. 1994); Franson v. Micelli, 645 N.E.2d 404 (Ill. 1994); and, State v. Bible, 858 P.2d 1152 (Ariz. 1993).
See, Advisory Committee Note to Rule 702, (“…The discretion accorded by Rules 401-03 is coextensive with all the discretion currently exercised with regard to expert opinion under Rhode Island law… Therefore, adoption of Rule 702 would make no change in current Rhode Island law or practice”).