Section 14.24 Admissibility of “Scientific Evidence” of Field Sobriety Testing

• Library: DWI 2014

To challenge the scientific evidence presented by the State in the form of standardized field sobriety testing, it is important to first review Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Before State Board of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003), these two cases set forth the standards that were used by Missouri courts for determining when a fact-finder at trial may consider whether a scientific technique or theory is sufficiently valid for admissibility in civil cases.

Before McDonagh, 123 S.W.3d 146, Missouri state courts followed the Frye, 293 F. 1013, standard for determining whether a scientific technique is admissible. Missouri courts appear to still follow Frye in criminal cases. See State v. Davis, 814 S.W.2d 593 (Mo. banc 1991); State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993), overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997). The Frye standard is whether a scientific principle is generally accepted in the general field in which it belongs.

The Daubert, 509 U.S. 579, standard is a work in progress and has not been used in Missouri except in federal court. But Daubert is important to review because many courts around the country are determining the admissibility of field sobriety testing and other “scientific” evidence using this standard. In Daubert, 509 U.S. at 588, the Supreme Court took the opportunity to review Federal Rule of Evidence 702, which provided at that time: “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.” State ex rel. Romley v. Fields, 35 P.3d 82, 87–88, n.5 (Ariz. Ct. App. 2001), provides an excellent summary of Daubert:

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587–89, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that Frye’s general acceptance requirement had been superseded by the 1975 enactment of Federal Rule of Evidence 702 and rejected Frye as the exclusive test for admitting expert scientific testimony in federal cases. Instead, the Court held that Federal Rule 702 imposes a special obligation upon a trial judge as an evidentiary “gatekeeper” to ensure that scientific evidence is...