State variations on the Daubert theme: California

FICC Quarterly, Fall 2000 by Hagan, Patrick J, Bertani, Pamela Winston

I CALIFORNIA'S BACKGROUND ON ADMISSIBILITY OF EXPERT TESTIMONY

The California Supreme Court's unanimous 1976 decision in People v. Kelly1 examined the admissibility of expert testimony when such testimony is based upon new scientific techniques. The Kelly opinion set forth various general principles of admissibility and outlined the traditional process for determining whether proffered expert testimony based on a new scientific technique is admissible.2 Step one of the process requires that "the reliability of the method must be established, usually by expert testimony."3 Step two requires that a "witness furnishing [relevant] testimony must be properly qualified as an expert to" opine on the subject at hand.4 In addition, the proponent of the evidence "must demonstrate that correct scientific procedures were used in the particular case."5

In considering the appropriate test for assessing a new technique's reliability, the Kelly court confirmed its allegiance to the "general acceptance" test set forth in the 1923 Frye case.6 In so doing, the court rejected an alternative approach for examining reliability, which would have left the question of admissibility in the trial court's discretion.7 According to Frye, "while courts will go a long way in admitting expert testimony deduced from well-recognized scientific principles 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."8

In Kelly, the California Supreme Court noted various advantages of adhering to the Frye "general acceptance" standard.' Among the court's primary reasons for continuing to follow Frye were that: (1) "those most qualified to assess the general validity of a scientific method will have the determinative voice" on such issues;10 (2) "a minimal reserve of experts" would exist to scrutinize critically each technique in a particular case;11 (3) consensus in the scientific community would promote uniformity of decisions; and (4) Frye's conservative nature would protect the parties in a given case.12 The court explained further that Frye's more conservative approach to evaluating reliability was consistent with the need for judicial caution in this area, particularly since jurors tend to give undue "weight to 'scientific' evidence when presented by 'experts' with impressive credentials."13 Moreover, once a trial court admits evidence derived from a new technique and the decision is affirmed on appeal, the decision becomes precedent controlling subsequent trials.14 For these reasons, the Kelly court concluded that the more cautious Frye formulation to assessing reliability was preferable to simply submitting the matter to the trial court discretion.15

II. DAUBERT

Daubert v. Merrell Dow Pharmaceuticals, Inc.16 involved allegations that Bendectin, a prescription antinausea drug marketed by Merrell Dow, caused birth defects in the offspring of pregnant women who ingested it. In this sweeping 1993 opinion, the United States Supreme Court flatly rejected application of Frye as the exclusive standard for determining scientific evidence admissibility and ruled that the Federal Rules of Evidence, not Frye, governed whether expert testimony is or is not admissible.17 According to the Court, "[although] Frye made `general acceptance' the exclusive test for admitting expert scientific testimony... [t]hat austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials."18

In diametric opposition to the Kelly/Frye "general acceptance" test, Daubert I requires that trial judges, rather than experts in the relevant field, act as "gatekeepers" by determining whether proffered expert evidence is both reliable and relevant.19 The high court noted that "a rigid `general acceptance' requirement[, as set forth in Frye,] would be at odds with the `liberal thrust' of the Federal Rules and their `general approach' of relaxing the traditional barriers to `opinion testimony'."20 Under Daubert I, proffered evidence is relevant "[i]f scientific... or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."21 Such evidence is reliable if a judge determines that the evidence constitutes scientific knowledge (i.e., is derived by using the scientific method).22 In addition to derivation by the scientific method, other indicia of reliability include whether a theory or method has been: (i) tested; (ii) peer reviewed and published; (iii) generally accepted in the scientific community; (iv) deemed to have an acceptable rate of error; and (v) subjected to standards controlling technique operation.23

One year after the Daubert I decision, the California Supreme Court had an opportunity to apply the objective Daubert I standards to assess the admissibility of scientific evidence in the case of People v. Leahy.24 However, instead of following the United States Supreme Court's lead on this issue, the California Supreme Court opted to continue applying Kelly/Frye as its apparently exclusive test.