Daubert in Kansas: Prompting a Fresh Look at the Admissibility of Scientific Evidence
| Publication year | 2015 |
| Pages | 22 |
| Citation | Vol. 84 No. 9 Pg. 22 |
By Kyle Malone
Introduction
Imagine you are in your office studying the results of a polygraph examination. Your client is facing serious criminal charges, but the evidence is thin and, before trial, your client insisted on taking a polygraph test to show he or she had nothing to hide. To your delight, the results appear to show that your client is, in fact, innocent. Immediately, you realize how powerful the polygraph results could be if you could present them to the jury. But are the results of such a test admissible in Kansas courts?
If you answered "no," you are in good company.[1] The Kansas Supreme Court has repeatedly refused to find polygraphs admissible in criminal prosecutions absent a stipulation from both parties.[2] It has also disallowed polygraph evidence in proceedings under the Kansas Sexually Violent Predator Act.[3] Under the Kansas Rules of Evidence, polygraph tests have been excluded in part because they are generally not accepted as reliable in the relevant scientific community.[4]
But in 2014, the Kansas Legislature changed the rules of the game by amending K.S.A. 60-456, which addresses expert testimony.[5] That change, which did away with the Frye standard of admissibility for scientific evidence and adopted the Daubert standard, altered the way courts must analyze the admission of evidence, such as polygraph results.[6] For reasons more fully developed below, Kansas practitioners and judges should discard any assumptions they may currently hold about the admissibility of such evidence. The recent legislative change requires courts to view all forms of scientific evidence, whether novel or well-established, with a newly critical eye focusing on the reliability of the evidence.[7]
This article will discuss the new rules regarding the admissibility of scientific evidence and provide some examples of evidence that may deserve different treatment, or at least a second look, under the new statute.
The development of Daubert and Frye
For decades, Kansas courts utilized the Frye standard, named for Frye v. United States, [8] to analyze the admissibility of scientific evidence. [9] Under that standard, scientific evidence is only admissible if it has gained general acceptance in the relevant field of study. [10] As such, the Frye test represents a conservative approach to the admission of evidence. [11] It deliberately imposes a substantial obstacle to the "unrestrained admission of evidence based upon new scientific principles." [12] The D.C. Circuit's Frye decision was first cited with approval by the Kansas Supreme Court in 1947. [13] Thereafter, the Frye test was consistently applied in Kansas courts in conjunction with K.S.A. 60-456. [14]
In federal courts, the landscape of scientific evidence changed significantly in 1993 when the U.S. Supreme Court issued its opinion in Daubert v. Merrell Dow Pharmaceuticals Inc. [15] Prior to Daubert, the majority of courts across the country followed the Frye test. [16] But a half century after Frye, the Federal Rules of Evidence were legislatively enacted. [17]Rule 702 governs the admissibility of expert testimony and, in 1993, read: "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." [18]
The Supreme Court found that nothing in Rule 702 established general acceptance in the scientific community as a prerequisite to admissibility. [19] It further found that the Federal Rules of Evidence generally relaxed the traditional barriers to opinion testimony and were incompatible with Frye's "general acceptance" standard. [20] Consequently, it ruled that the Frye test should not be applied in federal trials. [21]
Differing from Frye, Rule 702 requires proposed testimony to be supported by appropriate validation. [22] The Daubert Court stated that "in order to qualify as 'scientific knowledge,' an inference or assertion must be derived from the scientific method." [23] It also highlighted the requirement that any proposed scientific evidence must actually assist a trier of fact in understanding the evidence or determine a fact in issue in the case. [24] Thus, there must be a valid connection between proffered scientific evidence and the pertinent courtroom inquiry. [25]
Under Rule 104(a), a trial judge is responsible for ruling on the admissibility of evidence. [26] Therefore, the Daubert Court found that trial judges act as gatekeepers charged with the task of determining whether proffered expert testimony complies with Rule 702 involves scientific knowledge. [27] "'This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." [28] To assist judges in this role, the Supreme Court announced the following five factors courts should consider when ruling on the admissibility of scientific evidence: (1) whether the scientific knowledge has been or can be tested, (2) whether it has been subjected to peer review and publication, (3) the known or potential rate of error, (4) the existence and maintenance of standards controlling a scientific technique's operation, and (5) general acceptance in the relevant scientific community.[29] It emphasized that it was not a definitive list of factors and that the inquiry required by Rule 702 is a flexible one.[30] Also, the focus of the inquiry must always be on principles and methodology rather than on the conclusions they generate.[31]
Later, the U.S. Supreme Court clarified that Dauberts rationale did not merely apply to scientific knowledge. Rather, "[Rule 702] applies its reliability standard to all 'scientific,' 'technical,' or 'other specialized' matters within its scope."[32] In 2000, Rule 702 was amended in response to Daubert to affirm the trial judge's role as gatekeeper.[33]
In contrast, K.S.A. 60-456, the statute governing expert testimony in Kansas, remained unchanged from 1963 until 2014.[34] Its language has been found to comport with the Frye standard.[35] But in 2014, the Kansas Legislature amended K.S.A. 60-456 by adopting language that is identical in substance to the current Rule 702.[36] The new Kansas rule states in pertinent part:
If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is 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 on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case.[37]
Although no reported Kansas appellate case has interpreted the effect of the newly amended statute, using the Supreme Court's ruling in Daubert as a guide, it is safe to assume that the statutory amendment has supplanted the Frye standard in Kansas.[38] Therefore, the Kansas legislature has made application of the Daubert standard necessary in Kansas.
How will Daubert change the admission of scientific evidence in Kansas?
Now that Kansas has legislatively adopted the Daubert standard, it is important to consider what, precisely, has changed. On remand from the Supreme Court's Daubert decision, the Ninth Circuit succinctly summarized the difference between the Frye and Daubert standards.[39] First, it reiterated Fryes general acceptance test.[40] It then went on to say that "The focus under Daubert is on the reliability of the methodology, and in addressing that question the court and the parties are not limited to what is generally accepted; methods accepted by a minority in the scientific community may well be sufficient."[41]
Beyond opening the doors to evidence accepted by only a minority of the scientific community, the Daubert Court indicated that its holding applied both to novel scientific techniques and well-established propositions, even though challenges to established scientific techniques are more easily defended.[42] In other words, the mere fact that expert testimony related to scientific evidence has been routinely admitted in the past does not mean that the same evidence should survive scrutiny under the Daubert standard.[43] That said, "theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201."[44] Language equivalent to Rule 201 can be found at K.S.A. 60-409(b).
Kansas' adoption of the Daubert standard should be treated as an opportunity for practitioners and judges alike to reassess the strengths and weaknesses of scientific evidence with a focus on the reliability of the specific methods or techniques used by expert witnesses. The remainder of this article is devoted to discussing some specific types of scientific evidence and how they have been previously handled in Kansas courts. This is not an exhaustive list of the types of evidence now governed by Daubert, nor is it a thorough treatment of the issues surrounding the admissibility of those or any other types of scientific evidence. Rather, this section seeks to challenge assumptions many may hold about some well-known forms of evidence: the horizontal gaze nystagmus test, fingerprints, polygraphs, bite marks, and burn patterns. Hopefully, the examples generate new questions about forms of scientific evidence not covered in this...
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