See also: ATOMIC ABSORPTION ANALYSIS; BLOOD; BLOOD-ALCOHOL TESTS; CHAIN OF CUSTODY; DEMONSTRATIONS; DNA; DOCUMENTS–Questioned Documents Analysis; EXPERIMENTS; EXPERTS; FINGERPRINTS; HANDWRITING–Expert Testimony; HARRISON-GILROY GUNSHOT RESIDUE TEST; MACHINES; MICROANALYSIS; NARCOANALYSIS; NARCOTICS TESTING; NALLINE TEST; NEUTRON ACTIVATION ANALYSIS; PATERNITY, PROOF OF; POLLS; POLYGRAPH EVIDENCE; RADAR; SCHOLAR’S PRIVILEGE; VASCAR; VOICE SPECTROGRAPHIC ANALYSIS.

1.  Generally.

One fundamental concern of courts in dealing with scientific evidence is that its aura of infallibility may lead jurors to give it undue emphasis.{footnote} [3625]United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974) ("scientific proof may in some instances assume a posture of mystic infallibility . . . .").
State v. Bible, 175 Ariz. 549, 578, 858 P.2d 1152, 1181 (1993) ( “‘science’ is often accepted in our society as synonymous with truth”), quoting Morris K. Udall, et al., Arizona Practice:  Law of Evidence §  102, at 212 (3d ed.1991)).{/footnote}

To be admissible, scientific evidence must shown to be both relevant and scientifically reliable.{footnote} [3626]Daubert v. Merrell Dow Pharmaceuticals,  509 U.S. 579 (1993); Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968 (8th Cir. 1995); Joiner v. General Elec. Co., 78 F.3d 524 (11th Cir. 1996).{/footnote}  Where physical evidence has been subjected to testing, the proponent must also establish a proper chain of custody.{footnote} [3627][#1]
Nichols v. McCoy, 235 P.2d 412 (Cal. App. 1951)(blood sample inadmissible where sample taken at mortuary and not segregated from other blood samples at mortuary).{/footnote}  See CHAIN OF CUSTODY.

§ 2.  Relevance.
 
As with other types of evidence, scientific evidence, to be admissible, must be helpful to the trier of fact.{footnote} [3628]FRE 702 (admissibility of expert testimony); Daubert v. Merrell Dow Pharmaceuticals,  509 U.S. 579 (1993); Pioneer Hi-Bred Intern. v. Holden Foundation Seeds, Inc., 35 F.3d 1226 (8th Cir. 1994).{/footnote}   It has also been held that for scientific evidence to be relevant, there must be a valid scientific connection to a pertinent inquiry in the case.{footnote} [3629]  Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968 (8th Cir. 1995).{/footnote}  The probative value of the offered evidence must not be substantially outweighed by the risk of confusion, waste of time or unfair prejudice.{footnote}FRE 403.{/footnote}  See also PREJUDICE; CONFUSION; WASTE OF TIME (AS OBJECTION).

West 363

§ 3.  Reliability

The reliability of a certain scientific method or theory may be established by controlling legal precedent,{footnote}See People v. Watson, 75 Cal. App. 3d 384, 142 Cal. Rptr. 134 (1977) (“Once … a new scientific technique has been approved in a published decision on appeal, the precedent so established is controlling in the absence of evidence reflecting change in the attitude of the scientific community.”); State v. Morgan, 485 S.E.2d 112, ____ n. 4 (S.C. Ct. App. 1997){/footnote} judicial notice where appropriate,{footnote}§ 3(a), infra.{/footnote} or by an evidentiary hearing.  Regardless of how the general reliability of the method or theory is established, however, the proponent must also establish that the proper methodology was followed by the expert, or the theory applied correctly to the facts.  [Insert ipsi dixit quote from Kumho

§ 3(a).  Judicial Notice of Reliability.

A court may take judicial notice of the reliability of widely accepted scientific laws,{footnote}Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).{/footnote} techniques{footnote} [3634] In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), rehearing denied, cert. denied, General Elec. Co. v. Ingram, 115 S.Ct. 1253, 131 L.Ed.2d 134.
State v. Morgan, 485 S.E.2d 112, ____ n. 4 (S.C. Ct. App. 1997).{/footnote} and devices, and of the contents of scientific literature.{footnote}Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151 (2d Cir. 1990); Baenitz v. Ladd, 124 App. D.C. 237, 363 F.2d 969 (1966).{/footnote}   [O]nce a [technology or] procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.{footnote}Harper v. State, 292 S.E.2d 389 (Ga. 1982){/footnote}
 See also JUDICIAL NOTICE; BLOOD-ALCOHOL TESTS; FINGERPRINTS; FIREARM IDENTIFICATION; RADAR.  Where judicial notice has been taken of the reliability of a method or device, the jury will be instructed that the method or device is reliable, but the jury is not required to accept its results.

3(b).  Evidentiary Hearings

Frye inapplicable when expert evidence is in the nature of physical comparisons as opposed to scientific tests or experiments.{footnote}In Ex parte Dolvin, 391 So.2d 677 (Ala. 1980) (Frye standard inapplicable to forensic odontology—the comparison of skeletal remains).
See, e.g., BITE MARKS.{/footnote} 

3(b)(1).  The Frye Standard.

Where the reliability of a scientific method has not been previously decided in a controlling precedent, and is not subject to judicial notice, an evidentiary hearing must be conducted.{footnote}State v. Morgan, 485 S.E.2d 112, ____ n. 4 (S.C. Ct. App. 1997).{/footnote}  The practical question of how a trial judge is to determine in an evidentiary the reliability of scientific evidence about which he or she may know practically nothing is the subject of much disagreement in the case law and among commentators.  The well-known Frye test, dating to 1923, requires that the principles underlying the evidence be general accepted among expertes in the relevant field."{footnote} [3639]Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
                        Just when a scientific principle 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. 
Id. (excluding evidence offered by a murder defendant of his results on a "systolic blood pressure deception test," a predecessor to the modern lie detector test) [REVERSED BY D.C. CIR. RE POLYGRAPH?]{/footnote}  [In subsequent years, Frye was usually not followed outside the context of lie detection,{footnote} [3640]CHECK United States v. Dorfman, 532 F. Supp. 1118, 1134 (N.D. Ill. 1981); Lemp & Saltz 934-35.  Check United States v. Galler, 519 F.2d 463 (4th Cir. 1975) (allowing jury to weigh reliability of spectographic voice analysis).
            Contra United States v. McDaniel, 538 F.2d 408 (D.C. Cir. 1976)(employing Frye test with respect to spectographic voice analysis).{/footnote} and was abandoned by many courts even in that area.?]  See POLYGRAPH EVIDENCE.
The Frye approach has been widely followed among state courts,{footnote}E.g., State v. Lehr, 201 Ariz. 509, 38 P.3d 1172; (Ariz. 2002); People v. Kelly, 49 P.2d 1240, 1244 (Cal. 1976); State v. Marks, 647 P.2d 1292, 1299 (Kan. 1982); People v. Eyler, 549 N.E.2d 268, 284 (Ill. 1989); Commonwealth v. Curtin, 565 N.E.2d 440, 443 (Mass. 1991); People v. Cox, 271 N.W.2d 212, 216 (Mich. Ct. App. 1978); People v. Watkins, 259 N.W.2d 381, 384 (Mich. Ct. App. 1977); State v. Feeney, 448 N.W.2d 54, 57 (Minn. 1989); State v. Sager, 600 S.W.2d 541, 562 (Mo. Ct. App. 1980); State v. Coolidge, 260 A.2d 547, 559 (N.H. 1969); State v. Cavallo, 443 A.2d 1020, 1024, (N.J. 1982); People v. Hughes, 453 N.E.2d 484, 490 (N.Y. 1983); State v. Smith, 362 N.E.2d 1239, 1245 (Ohio Ct. App. 1976); State v. Ford, 392 S.E.2d, 781, 783 (S.C. 1990); State v. Helmer, 278 N.W.2d 808, 812 (S.D. 1979); State v. Baker, 366 S.E.2d 642, 644 (W. Va. 1988); In re Adoption of R.P.R., 291 N.W.2d 591, 600 (Wis. Ct. App.
1980) (separation trauma theory).

            But see Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994) (declining strict adherence to Frye in favor of "demonstrated reliability."){/footnote} but after states began adopting the federal rules of evidence, some states abandoned the Frye approach.{footnote}Barmeyer v. Mont. Power Co., 202 Mont. 185, 192, 657 P.2d 594, 598 (1983).{/footnote} 
Text Box: FRE 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
 Under that approach, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand. The trial judge has the sole responsibility to determine this question.  The general acceptance under the Frye test must be established by a preponderance of the evidence.{footnote} [3643]Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995) {/footnote}  A trial court must determine (1) whether such expert testimony would assist the jury in understanding the evidence or in deciding a fact in issue; (2) whether such testimony is based on a scientific principle which has gained general acceptance in that particular scientific community; and (3) whether the expert witness is sufficiently qualified to render an opinion on the subject.  If these criteria are met, the expert witness may testify at trial, and the jury can assess the expert’s credibility.{footnote} [3644]Ramirez v. State, 651 So. 2d 1164, 1166 (Fla. 1995).{/footnote} 

In determining whether scientific evidence is generally accepted as reliable, a court may properly consider the testimony of experts, articles written by experts, and the conclusions of other courts.{footnote}Harper v. State, 292 S.E.2d 389 (Ga. 1982); Commonwealth v. Kater, 388 Mass. 519, 527 (1983).{/footnote}

Over time, many scholars criticized Frye as unduly restrictive, particularly where novel but reliable scientific evidence is being offered.  Then FRE 702 was enacted in 1975, and provided:
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.

§ 3(c).  The Daubert Decision.

In 1993, the Supreme Court overruled the Frye decision in Daubert v. Merrell Dow Pharmaceuticals, holding that the standard of FRE 702 superseded it.{footnote}509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).  See also Joiner v. General Elec. Co., 78 F.3d 524 (11th Cir. 1996).{/footnote} 

FRE 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

For a detailed discussion of Daubert and related cases dealing with the reliability of expert testimony generally, see EXPERTS.

  
The Court identified five factors courts may consider:  (1) whether the offered technique is capable of and has been tested;{footnote}See also Deimer v. Cincinnati Sub-Zero Prod., Inc., 58 F.3d 341, 345 (7th Cir. 1995.
            See also State v. York, 564 A.2d 389, 391 (Me. 1989) (excluding scientific testimony not supported by experimental research); Nelson v. Trinity Medical Ctr., 419 N.W.2d 886, 892 (N.D. 1988) (same); State v. Smith, 362 N.E.2d 1239 (Ohio Ct. App. 1976) (modified version of gunshot residue test held inadmissible where modification not subjected to testing).{/footnote} (2) whether the technique has been subjected to peer review and publication;{footnote}Sorenson By and Through Dunbar v. Shaklee Corp., 31 F.3d 638 (8th Cir. 1994) (excluding testimony as to chemical residue on alfalfa tablets causing mental retardation of children).
{/footnote} (3) the rate of possible error; (4) whether there are "standards controlling the technique’s operation"; and (5) the degree of acceptance by the scientific community.{footnote}Daubert, 509 U.S. at ___, 113 S. Ct. at ___, 125 L. Ed. 2d at ___; Sorenson By and Through Dunbar v. Shaklee Corp., 31 F.3d 638 (8th Cir. 1994)(excluding testimony as to chemical residue on alfalfa tablets causing mental retardation of children).{/footnote}  Courts need not always consider all of these factors, since not all will be applicable in a particular case.{footnote}Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (upholding district court’s exclusion of expert testimony by tire failure analyst).{/footnote}

§ 3(b)(ii).  Helpfulness to the Jury and "Fit".

The second prong of FRE 702’s standard for the admissibility of expert testimony focusses on whether the proffered testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue."  In Daubert, the Court equated this with the concept of relevance, or "fit".{footnote}113 S.Ct. at 2796.{/footnote}  As the Court stated, "Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry."{footnote}113 S.Ct. at 2796.{/footnote}

§ 3(c).  The Aftermath of Daubert.

In Kumho Tire Co., Ltd. v. Carmichael, the Supreme Court extended Daubert to non-scientific types of expert testimony.{footnote}526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (upholding district court’s exclusion of expert testimony by tire failure analyst).{/footnote}  See EXPERTS.

§ 3(d).  State Courts Reaction to Daubert.

While some state which have adopted the federal rules have followed the Daubert decision,{footnote}State v. Clifford, 121 P.3d 489, 494 (Mon. 2005); State v. State v. Alberico, No. 20,282, 1993 WL 387950, at *1 (N.M. Aug. 30, 1993).{/footnote} others have declined to follow Daubert, and reaffirmed their adherence to the Frye approach.{footnote}People v. Leahy, 882 P.2d 321 (Cal. 1994); Murray v. Florida, No. 83-556 (Fla. Supr. 4/17/97); State v. Copeland, Wash. Sup.Ct. (No. 62417-8, Sep. 19, 1996); State v. Riker, 869 P.2d 43 (Wash. 1994).{/footnote}

Procedure

It is within a trial court’s discretion to conduct determinations of admissibility in the presence of a jury.{footnote} State v. Lehr, 201 Ariz. 509, 38 P.3d 1172 (Ariz. 2002) (DNA evidence).{/footnote}  Even if the court rules the evidence admissible, a party may challenge its weight or credibility.{footnote} United States v. Velasquez, 64 F.3d 844, 848 (3d Cir. 1995).
State v. Lehr, 201 Ariz. 509, 38 P.3d 1172 (Ariz. 2002) (DNA evidence); State v. Sanchez, 328 N.C. 247, 400 S.E.2d 421, 424 (1991).{/footnote}

§ 4.  On Appeal

United States v. Jones, 107 F.3d 1147, 1149-1150 (6th Cir. 1997)

Hearsay Problems

Tabulated data contained in a scientific report has been held inadmissible hearsay.{footnote}CHECK Clime v. Dewey Beach Enterprises, Inc., 831 F. Supp. 341 (D. Del. 1993).{/footnote}

Bibliography.

David E. Bernstein, The Admissibility of Scientific Evidence After Daubert v. Merrell Dow Pharmaceuticals, Inc., 15 Cardozo L. Rev. 2139 (1994).
 Neil J. Vidmar & Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, Law & Contemp. Probs., Autumn 1989.
David L. Faigman et al., 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 (1994).
Michael H. Gottesman, Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, 15 Cardozo L. Rev. 1837 (1994)
Ronald J. Allen, Expertise and the Daubert Decision, 84 J. Crim. L. 1157 (1994) Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 Tex. L. Rev. 715 (1994)
Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. Pitt. L. Rev. 889 (1994)
Margaret G. Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process, 15 Cardozo L. Rev. 2183 (19__)
Randolph N. Jonakait, The Meaning of Daubert and What That Means for Forensic Science, 15 Cardozo L. Rev. 2103 (1994) (concluding that Daubert’s test may not affect admissibility because it is too flexible).
Arvin Maskin, The Impact of Daubert on the Admissibility of Scientific Evidence: The Supreme Court Catches up with a Decade of Jurisprudence, 15 Cardozo L. Rev. 1929 (1994)