§ 4.10 THE VALIDATION OF SCIENTIFIC EVIDENCE

• Jurisdiction: North Carolina

§ 4.10 THE VALIDATION OF SCIENTIFIC EVIDENCE

[1] THE DOCTRINE

At first glance, the validation of scientific evidence appears to be a simple problem of authentication. The proponent could argue that Federal Rules of Evidence 901(b)(9) and 104(b) govern and that the proponent need only present sufficient evidence to support a rational jury finding that the underlying theory is valid and the instrument is reliable. However, the courts have long been suspicious of scientific evidence. In the first place, the courts have sometimes been skeptical of scientists' claims of the virtual infallibility of scientific techniques. Secondly, the courts fear that scientific evidence will overwhelm the jury; the jurors will be so impressed by the scientific evidence that the scientist witness will effectively usurp the jurors' fact-finding duties. The fear is that the jurors will uncritically accept the scientist's testimony.

For these reasons, until recently the overwhelming majority of courts required an extraordinary foundation for scientific evidence. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), holds that the proponent must show that the theory and instrument have been generally accepted within the relevant scientific circles. Absent that showing, the scientific evidence is inadmissible. Under Frye, the proponent must identify the pertinent scientific circles and then establish that the theory and instrument have gained a certain degree of popularity within those circles. The existence of the requisite degree of acceptance is a foundational fact to be resolved by the judge under Federal Rule of Evidence 104(a).

In 1993, the United States Supreme Court handed down its decision in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The Daubert Court held that the enactment of the Federal Rules of Evidence impliedly overturned the Frye standard. However, the Court emphasized that the abolition of the Frye test does not mean that purportedly scientific testimony is to be admitted willy-nilly. Rather, the trial judge has an important gatekeeping function to perform. The judge must ensure that the testimony qualifies as reliable "scientific knowledge" within the meaning of that expression in Federal Rule of Evidence 702. A proposition will qualify as "scientific knowledge" if the proponent can demonstrate that the theory is the product of sound scientific methodology. The Court defined scientific methodology as the process of formulating hypotheses and then conducting controlled laboratory experiments or systematic field observations to prove or falsify the hypothesis. According to the majority opinion in Daubert, in deciding whether a proposition rests on sound scientific methodology, the trial judge should consider such factors as whether the proposition is testable, whether it has been tested, the validity rate attained in any tests, whether the research has been peer reviewed, and whether the findings are generally accepted. The emerging view is that the bottom line under Daubert is whether the proponent has presented enough empirical data and reasoning to establish by a preponderance of the evidence that by using the particular technique or theory the expert contemplates relying on, the expert can accurately draw the specific type of inference the expert proposes testifying to. Although the Daubert validation standard is now the law in federal court and approximately three quarters of the states, Frye remains the law in a significant minority of jurisdictions. Some of these Frye jurisdictions are among the most populous and litigious states, including California, Illinois, New York, Pennsylvania, and Washington. 1 P. Giannelli, E. Imwinkelried, A. Roth & J. Campbell Moriarty, Scientific Evidence §§ 1.06, 1.16 (Matthew Bender, 5th ed. 2012).⁶⁰

A scientific evidence foundation will often require two witnesses. If the theory and instrument are very generally accepted, the judge will judicially notice those elements of the foundation upon a proper timely request by counsel. However, when judicial notice is inapplicable, the proponent will probably have to call an expert with heavy academic credentials to lay those elements of the foundation. The proponent will then call a technician as the second witness to lay the balance of the foundation.

[2] ELEMENTS OF THE FOUNDATION

1. Witness #1 is qualified to establish the theory's validity and the instrument's reliability. Since this witness is testifying to relatively theoretical issues, his or her qualifications often consist of knowledge gained through formal education.
2. The underlying theory is valid. Proof of the empirical data validating the theory is technically unnecessary under the Frye test, but in practice many trial judges in Frye jurisdictions tended to demand proof of empirical validation as well as general acceptance. Testimony about the empirical validation of the theory is absolutely essential under Daubert. Under Daubert, the question is not the global validity of the expert's discipline. Rather, the focus is on the validity of the specific theory or methodology that the expert proposes relying on. The dispositive question is whether the proponent has presented enough empirical data and reasoning to convince the judge by a preponderance of the evidence that by using the specific methodology the expert contemplates relying on, the expert can accurately draw the particular type of inference the expert proposes testifying to. Edward J. Imwinkelried, The Best Insurance Against Miscarriages of Justice Caused by Junk Science: An Admissibility Test that is Scientifically and Legally Sound, 81 Albany L. Rev. 851, 857 (2017/2018).
3. The underlying theory is generally accepted as valid. Proof of general acceptance is required under Frye. Although such proof is not invariably required under Daubert, the Daubert majority stated that the trial judge could consider general acceptance as a relevant factor. The fact that most specialists within a discipline subscribe to a theory is circumstantial evidence that the theory rests on sound scientific methodology; presumably they cannot find any substantial flaws in the research validating the theory. General acceptance is no longer dispositive, but many trial judges still attach a great deal of weight to this factor.
4. The instrument or technique is reliable. Again, the bottom line is whether the available empirical data demonstrates that by using this technique, the expert can accurately draw the type of inference or opinion that she contemplates testifying to. The expert should describe the empirical validation studies in some detail. It is true that in the original Daubert decision, the Court described Article VII's standards as "liberal" and "permissive." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). However, in its last decision in the line of authority, the Court stated that Article VII prescribes "exacting standards of reliability." Weisgram v. Marley Co., 528 U.S. 440, 120 S. Ct. 1011, 145 L. Ed. 2d 958 (2000). As in the case of element #2, proof of experiments establishing the reliability of the instrument is technically unnecessary under Frye. However, in practice many trial judges in Frye jurisdictions insisted upon proof of empirical validation as well as a showing of general acceptance.
5. The instrument is generally accepted as reliable. As in the case of element #3, proof of general acceptance is necessary under Frye. Again, general acceptance is a relevant factor in the Daubert analysis, and many trial judges continue to ascribe a good deal of weight to that factor.
6. Witness #2 is qualified to conduct and interpret the test results.
7. The instrument witness #2 used was in good working condition.
8. The witness used the instrument in the test.
9. The witness used the proper procedures. The courts are divided over the question of whether proof of proper test procedures is an essential element of the foundation. Some courts have held that questions about the use of correct test protocol affect the weight, but not the admissibility, of the evidence. The majority of courts still adhere to the traditional view demanding foundational proof of proper test procedures. As amended in 2000, Federal Rule of Evidence 702(d) requires that the proponent of expert testimony demonstrate that the expert "reliably applied the principles and methods to the facts of the case."
10. The witness states the test results.

[3] SAMPLE FOUNDATION

The following hypotheticals illustrate both Frye and Daubert foundations. Although the latter foundation goes into somewhat greater detail about the extent of the empirical verification of the underlying scientific principles, the foundations are similar. As previously stated, although Daubert no longer treats general acceptance as the test, the Daubert Court mentioned general acceptance as a pertinent factor in the judge's analysis. Moreover, again as previously stated, while proof of the extent of empirical validation is technically unnecessary under Frye, as a practical matter, many courts in Frye jurisdictions at the very least encouraged the proponent to present some minimal foundational testimony about the experiments conducted to validate the proponent's scientific hypothesis.

A Frye Foundation

The fact situation is a speeding prosecution. The government charges that the accused, Mr. Berton, was going 45 miles an hour on a street posted for 30 miles an hour. Officer Jones used a stationary radar speedmeter to clock the accused. Most jurisdictions would judicially notice the validity of the underlying theory and the reliability of speedmeters; but, for illustrative purposes, the prosecutor will call a witness to lay those elements of the foundation.

The prosecutor first calls Professor Jerold Harter. The professor has identified himself.

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