§418 Scientific Evidence

• Library: Evidence Restated Deskbook (2021 Ed.)

§418 Scientific Evidence

Scientific evidence is admissible if its proponent shows it to be based on a theory or technique that is scientifically valid and that it will be of assistance to the trier of fact to understand the evidence or to determine a fact in issue.

Notes

Scientific evidence is evidence gathered from scientific research. It is normally admitted through expert testimony. Section 490.065, RSMo Supp. 2019, sets forth the standard for the admission of expert testimony. Section 490.065 was repealed and reenacted effective August 28, 2017, retaining the substance of the repealed statute in § 490.065.1 and adding one new section, § 490.065.2.

A. Section 490.065.1 Cases

Subsection 1 of § 490.065 provides the standard to be used:

· in all actions and proceedings in which there is no right to a jury trial;

· in actions brought under Chapter 451, 452, 453, 454, or 455, RSMo (Domestic Relations); and

· in actions adjudicated in juvenile courts under Chapter 211, RSMo, in family courts under Chapter 487, RSMo, and in all proceedings before the probate division of the circuit court.

Inasmuch as the same standard existed in repealed § 490.065, caselaw construing the former statute in regard to the admissibility of scientific evidence should also be applicable to § 490.065.1 cases.

This standard applies to the admissibility of scientific evidence because the "overarching subject" of § 490.065.1, just as Federal Rule of Evidence 702, "is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission." Goddard v. State, 144 S.W.3d 848, 853 (Mo. App. S.D. 2004) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594 (1993)).

In passing upon the admissibility of scientific evidence, the trial judge acts as a gatekeeper, requiring the court to look to Daubert and its progeny for guidance in determining scientific validity—i.e., whether a theory or technique is "scientific knowledge" that will assist the trier of fact. Id.

Thus, cases interpreting FRE 702 "provide relevant and useful guidance in interpreting and applying [the] section." State Board of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 155 (Mo. banc 2003).

Accordingly, the factors a court should consider include whether:

· the theory or technique can be or has been tested using "scientific methodology";

· the theory or technique has been subjected to peer review and publication;

· the technique has a known or potential rate of error; and

· the theory or technique meets the Frye test of general acceptance in the particular field (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)).

Daubert, 509 U.S. at 593–94.

The trial judge's function in determining the scientific validity of a technique or process is different than the judge's responsibility in regard to the admissibility of expert opinion testimony. The latter is governed by § 490.065.3. See §§702 and 703 of this deskbook for discussion of the admissibility of expert testimony.

The general acceptance Frye factor

Inasmuch as a Daubert factor is whether a theory or technique meets the "Frye standard" of general acceptance in the particular field, previous caselaw regarding meeting that standard is still pertinent. The factor is met if the procedure and scientific principles on which the procedure is based are sufficiently established to have gained general acceptance in the particular field in which they belong. Zink v. State, 278 S.W.3d 170, 180 (Mo. banc 2009); State v. Kinder, 942 S.W.2d 313, 326 (Mo. banc 1996); State v. Pickens, 332 S.W.3d 303, 325 (Mo. App. E.D. 2011); State v. Daniels, 179 S.W.3d 273, 281 (Mo. App. W.D. 2005). Accordingly, a party seeking to introduce the results of a particular scientific test or process into evidence must show that the test has gained general acceptance in the particular field in which it belongs. State v. Hoy, 219 S.W.3d 796, 808–09 (Mo. App. S.D. 2007). In State v. Biddle, 599 S.W.2d 182, 191 (Mo. banc 1980), the Supreme Court added that general acceptance requires "wide scientific approval."

"Whether a procedure has gained acceptance in the relevant field and is admissible scientific evidence is established in a Frye hearing—that is a hearing held outside of the presence of the jury." Daniels, 179 S.W.3d at 281; State v. Salmon, 89 S.W.3d 540, 543 (Mo. App. W.D. 2002). General acceptance can be established by the testimony of an expert that it is so. State v. Faulkner, 103 S.W.3d 346, 357 (Mo. App. S.D. 2003); State v. Onken, 701 S.W.2d 518, 522 (Mo. App. W.D. 1985). But that testimony alone may not be sufficient. "In determining whether a specific procedure has gained acceptance within the scientific community, [Missouri] courts frequently look for guidance in the decisions of other jurisdictions, as well as professional literature and surveys of the history of the process involved." State v. Davis, 814 S.W.2d 593, 600–03 (Mo. banc 1991); see Alsbach v. Bader, 700 S.W.2d 823, 824–27 (Mo. banc 1985) (posthypnotic testimony lacks scientific support for its reliability, based on "the recent and persuasive trend of authority in other jurisdictions and the concensus [sic] of expert opinion" gleaned from the literature); Kinder, 942 S.W.2d at 327 (approving the admissibility of DNA statistical evidence derived by using the product rule after considering expert testimony and noting that the Missouri court of appeals and the overwhelming majority of recent cases in other jurisdictions have approved its use). Scientific evidence otherwise inadmissible for unreliability cannot be made admissible through a stipulation of the parties because it does nothing to correct the unreliability of the evidence. Biddle, 599 S.W.2d at 191.

Missouri case decisions establishing general acceptance have been judicially noticed. See, e.g., State v. Huchting, 927 S.W.2d 411 (Mo. App. E.D. 1996) ("The general scientific acceptability of DNA identification procedures is a matter of judicial notice in Missouri.").

If a procedure meets the Frye standard, any objection to the manner in which the procedure was conducted or to the specific test results goes to the weight of the evidence, not its admissibility. Id. at 418; Faulkner, 103 S.W.3d at 360.

"[A] Frye hearing is generally not required when the evidence at issue is not in fact 'scientific'—that is to say, it does not involve scientific procedures or techniques." State v. Patton, 419 S.W.3d 125, 129–30 (Mo. App. E.D. 2013) ("Reading the coordinates of cell sites from phone records and plotting them on a map is not a scientific procedure or technique.").

Foundation requirements in addition to general acceptance

The proponent of the evidence must also fulfill the following foundational requirements:

1. Show the identity and integrity of any object or sample tested, State v. Link, 25 S.W.3d 136, 146 (Mo. banc 2000); State v. Nettles, 216 S.W.3d 162, 166 (Mo. App. S.D. 2006); State v. Bode, 125 S.W.3d 924, 929 (Mo. App. W.D. 2004);

2. Show that the test was conducted by a qualified individual, State v. Rose, 86 S.W.3d 90, 97 (Mo. App. W.D. 2002); State v. Albanese, 920 S.W.2d 917, 927 (Mo. App. W.D. 1996), overruled on other grounds by State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000);

3. Show the accuracy of the test equipment, Stuhr v. Dir. of Revenue, State of Mo., 766 S.W.2d 446, 449 (Mo. banc 1989); State v. Stevens, 467 S.W.2d 10, 22–23 (Mo. 1971); and

4. Show utilization of the proper test procedure, Hansen v. Dir. of Revenue, State of Mo., 22 S.W.3d 770, 773 (Mo. App. E.D. 2000), overruled on other grounds by Verdoorn v. Dir. of Revenue, 119 S.W.3d 543 (Mo. banc 2003); State v. Setter, 763 S.W.2d 228 (Mo. App. W.D. 1988)

The foundation proof requirement is lessened in criminal preliminary hearings. Section 544.376, RSMo 2016.

B. Section 490.065.2 Cases

Subsection...