Expert Scientific Evidence—State Adoption of Daubert

TO:

FROM: Heather Gunas, Research Analyst

RE: Expert Scientific Evidence—State Adoption of Daubert

You asked how many states have rejected the Frye standard and adopted the Daubert standard.

In Daubert, the United States Supreme Court set a new standard for determining whether a methodology employed by an expert is sufficiently reliable. The decision was a formal rejection of the Frye test which required expert scientific evidence to be generally accepted in the relevant scientific field.

The states reaction to Daubert is mixed. Eleven states have expressly adopted the reasoning in Daubert; six have acknowledged that Daubert is consistent with the state's own rules of evidence; four consider the case persuasive; eleven continue to use the Frye standard; seven have expressly postponed a decision; six have expressed the supremacy of their own rules of evidence; and four have not yet addressed Daubert in any officially reported decision.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), the United States Supreme Court identified various criteria for determining whether a methodology employed by an expert is sufficiently reliable. It was a formal rejection of a standard set in the 1923 case Frye v. United States which required expert scientific evidence to be generally accepted in the relevant scientific field.

In the past, Frye's general acceptance test has significantly impacted the evidence law of the nation's courts. Over the last 20 years, nine United States Courts of Appeals applied the test, while at least 33 state jurisdictions have used the test (Stuart J. Graham, “Abandoning New York's 'General Acceptance' Requirement: Redesigning Proposed Rule of Evidence 702(b) After Daubert v. Merrell Dow Pharmaceuticals,” 43 Buffalo Law Review 229 at 233 (1995)).

Under Daubert, the trial court must be assured that the expert testimony in a trial comes from “scientific . . . knowledge” as required by Rule 702 of the Federal Rules of Evidence. The Supreme Court held that a trial judge must independently evaluate proffered expert testimony to assure that it is at least minimally reliable. Also, the judge must determine that the testimony fits the facts that are in dispute; testimony that fails the “fit” requirement is not helpful under Rule 702.

The majority opinion set a flexible test with five factors to help determine the validity of scientific evidence. These include: (1) whether the technique or theory can be or has been tested, (2) whether the theory or technique has been subject to peer review and publication, (3) the known or potential rate of error, (4) the existence and maintenance of standards or controls, and (5) the degree to which the theory or technique has been generally accepted in the scientific community (New York Law Journal, 7/14/95 “Further Open Questions After 'Daubert'”).

A Louisiana Law Review article indicated that the federal courts citing Daubert have had no trouble adopting the decision to their specific cases. In fact, the author said the decision has even proven to be “flexible and helpful. More importantly, it has imposed uniformity on the lower courts in requiring an active gatekeeping role by the judge and in establishing the threshold standard for admissibility of expert scientific testimony” (54 L.L.R. at 1323 (1994)).

Daubert is a nonconstitutional federal decision and, therefore, is not binding on the state courts. Consequently, since Daubert was decided, the high courts of a number of states have declined to follow Daubert and instead continue to follow Frye, even though their own state rules of evidence are patterned after the Federal Rules of Evidence that were interpreted in Daubert. Nevertheless, Daubert provides highly persuasive precedent for rejecting Frye, especially in those states that have adopted rules of evidence patterned after the Federal Rules (Gregory Catron, 21 Northern Kentucky Law Review 475 (Fall, 1994)).

District of Columbia: Maurice Taylor v. United States, 661 A.2d 636; 1995 D.C. App. LEXIS 123 (1995)—“Our standard should be that adopted by the Supreme Court in Daubert.”

Kentucky: Mitchell v. Kentucky, 908 S.W.2d 100; 1995 Ky. LEXIS 94 (1995)—“Fed. R. Evid. 702 and KRE 702 contain the same language. The United States Supreme Court held that Fed. R. Evid. 702 supersedes the Frye standards. Accordingly, we adopt the standard of review set forth in Daubert.”

Louisiana: Mitchell v. Uniroyal Goodrich Tire Company, Inc., La. App. 4 Cir, 01/09/96; 666 So.2d 727; 1995 La. App. LEXIS 3458 (1995)—“The Daubert analysis was adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1123 (La. 1993), which considered the admissibility of a psychologist's expert testimony.”

Massachusetts: Commonwealth v. Lanigan, 419 Mass. 15; 641 N.E.2d 1342; 1994 Mass. LEXIS 620 (1994)—“We accept the basic reasoning of the Daubert opinion because it is consistent with our test of demonstrated reliability.”

Montana: State v. Cline, 909 P.2d 1171; 1996 Mont. LEXIS 8—“The State acknowledges that this Court has adopted the standard set forth in Daubert.”

North Carolina: State v. Goode, 341 N.C. 513; 461 S.E.2d 631; 1995 N.C. LEXIS 415 (1995)—“Thus, under our Rules of Evidence, when a trial court is faced with a proffer of expert testimony, it must determine whether the expert is proposing to testify to scientific, technical, or other specialized knowledge that will assist the trier of fact to determine a fact in issue. As recognized by the United States Supreme Court [in Daubert] this requires a preliminary assessment of whether the reasoning or methodology underlying the testimony is sufficiently valid and whether that reasoning or methodology can be properly applied to the facts in issue.”

Oklahoma: Pennington v. State, 1995 Okla. Crim. App. LEXIS 85; 66 O.B.A.J. 36 (1995)—“This Court has now expressly adopted the Daubert standard.”

South Dakota: South Dakota v. Schweitzer, 533 N.W.2d 156; 1995 S.D. LEXIS 67 (1995)— “This court, in State v. Hofer, 512 N.W.2d 482 (S.D. 1994) recognized the Daubert decision. When presented with the question of admitting expert testimony, a trial court's task is one of 'ensuring that an expert's testimony both rests on a reliable foundation and is relevant . . . . Pertinent evidence based on scientifically valid principles will satisfy those demands.'”

Tennessee: State v. Jankowski, 1995 Tenn. Crim. App. LEXIS 907—“ . . . counsel did not object to said testimony in view of the court's 'gatekeeper' responsibilities imposed by Daubert.”

Vermont: State v. Streich, 658 A.2d 38; 1995 Vt. LEXIS 25 (1995)—“The fourth factor is, of course, the Frye standard, but it is now only one of many factors without controlling significance . . . . In applying the reliability and relevancy framework outlined in Daubert to the present case . . . .”

West Virginia: Gentry v. Raleigh County, 466 S.E.2d 171; 1995 W. Va. LEXIS 233 (1995)—“The first and universal requirement for the admissibility of scientific evidence is that the evidence must be both 'reliable' and 'relevant.' Under Daubert . . . the reliability requirement is met only by a finding by the trial court under Rule 104(a) of the West Virginia Rules of Evidence [and] the relevancy requirement [is covered by V.R.E. 104(a)].”

Arkansas: Jones v. State, 314 Ark. 289; 862 S.W.2d 242; 1993 Ark. LEXIS 530 (1993)—“We have no criticism of the Daubert case. Indeed, this court previously reached the same conclusion in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), rejecting the Frye standard for the relevancy approach implicit in Arkansas Rules of Evidence 401 . . . .”

Delaware: James Nelson v. State of Delaware, 628 A.2d 69; 1993 Del. LEXIS 306 (1993)—“Our decisions in Santiago, Whalen and Fensterer are consistent with the Supreme Court's decision in Daubert . . . . Thus, in Delaware, scientific evidence, rather than being governed by Frye, must satisfy the pertinent Delaware Rules of Evidence concerning the admission of scientific testimony or evidence.”

Iowa: Connie Lee Hutchison, et al. v. American Family Mutual Insurance Company, 514 N.W.2d 882; 1994 Iowa Sup. LEXIS 98 (1994)—“Rule 702 thus codified Iowa's existing 'liberal rule on the admission of opinion testimony' (Ganrud v. Smith, 206 N.W.2d 311, 314 (Iowa 1973)). The United States Supreme Court recently affirmed this approach in Daubert . . . .”

New Mexico: State v. Anderson, 118 N.M. 284; 881 P.2d 29; 1994 N.M. LEXIS 331; 33 N.M. St. B. Bull. 1129 (1994)—“In Alberico this Court favorably cited to Daubert for a list of the Supreme Court factors pertinent to the trial court's determination of whether the scientific evidence is reliable . . . . In Alberico, we set out another non-determinative factor—'whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture'” (116 N.M. at 167, 861 P.2d at 203)

Ohio: Henricks v. Front Row Theater, et al., 1994 Ohio App. LEXIS 5667 (1994)—“The Ohio Supreme Court reached a similar conclusion [as the United States Supreme Court in Daubert] in State v. Williams, 4 Ohio St.3d 53, 446 N.E.2d 444 (1983). The Court noted that the 'general acceptance' test governing admissibility of expert evidence had been widely criticized, and it then endorsed the flexible standard contemplated by Evid. R. 402 and 702. Moreover, the Court left the matter of admissibility to the discretion of the state's judiciary, as applied on a case-by-case basis.”

Wyoming: Springfield v. State, 860 P.2d 435; 1993 Wyo. LEXIS 149 (1993)—“We stated [in Rivera v. State, 840 P.2d 933 (Wyo. 1992)] that the correct approach in determining the propriety of the admissibility of scientific evidence was through analysis under the Wyoming Rules of Evidence, rather than the Frye test of general acceptance . . . . We find that our determination in Rivera parallels a most recent decision of the United States Supreme Court [in Daubert].”

Indiana: Steward v. State, 652 N.E.2d 490; 1995 Ind. LEXIS 91 (1995)—“. . . although not binding upon the determination of state evidentiary law issues, the federal evidence law of Daubert and its progeny is helpful to the bench and bar in applying the Indiana Rule of Evidence 702(b) . . . . ”

Nebraska: Nebraska v. Carter, 246 Neb. 953; 524 N.W.2d 763; 1994 Neb. LEXIS 234 (1994) —“Daubert, by its own terms, does not apply to state court proceedings; nevertheless, the State argues that the Daubert holding is persuasive in Nebraska based on the fact that our rules of evidence mirror the federal rules.”

Texas: E.I. DuPont DeNemours & Co. v. Robinson, 1995 Tex. LEXIS 103; 38 Tex. Sup. J. 852 —“We are persuaded by the reasoning in Daubert . . . .”

Virginia: Cotton v. Commonwealth, 19 Va. App. 306; 451 S.E.2d 673; 1994 Va. App. LEXIS 723 (1994)—“Although consideration of [the Daubert] factors is not expressly required by any ruling from the Supreme Court of Virginia, these factors manifest a concern not limited to federal jurisprudence, that the principles and methodology which underlie a proffered technique be based upon 'a reliable scientific technique,' the test espoused by Spencer, 238 Va. at 289, 384 S.E.2d at 782. Furthermore, these factors are relevant in Virginia because our Supreme Court requires an inquiry into the question of reliability.”

Alaska: Harmon v. Alaska, 908 P.2d 434; 1995 Alas. App. LEXIS 66 (1995).

California: The People v. Leahy, 8 Cal. 4th 587; 882 P.2d 321; 1994 Cal. LEXIS 5373 (1994).

Florida: State v. Vargas, 667 So.2d 175; 1995 Fla. LEXIS 1961; 20 Fla. Law W. S 594 (1995).

Illinois: People v. Watson, 257 Ill. App. 3d 915; 629 N.E.2d 634—“[U]ntil such time as our supreme court ceases to recognize the Frye test as the applicable standard for admitting novel scientific evidence in this state, we shall continue to apply it.”

Kansas: Armstrong v. City of Wichita, 21 Kan. App. 2d 750; 907 P.2d 923; 1995 Kan. App. LEXIS 169 (1995).

Maryland: Hutton v. State, 339 Md. 480; 663 A.2d 1289; 1995 Md. LEXIS 120 (1995).

Michigan: People v. McMillan, 213 Mich App. 134; 539 N.W.2d 553; 1995 Mich. App. LEXIS 397—“[W]e are bound to continue to follow [the Davis-Frye standard] until the Michigan Supreme Court overrules or modifies its decisions in this area.”

Washington: Reese v. Stroh, 128 Wash. 2d 300; 907 P.2d 282; 1995 Wash. LEXIS 249 (1995)—“When the admissibility of novel scientific evidence is at issue, Washington courts initially turn to the general acceptance test derived from Frye.” And State v. Riker, 123 Wash. 2d 351; 869 P.2d 43; 1994 Wash. LEXIS 131 (1994)—“Nevertheless, in this state, we continue to adhere to the view that the Frye analysis is a threshold inquiry to be considered in determining the admissibility of evidence under ER 702.”

Arizona: State v. Bible, 175 Ariz. 549; 858 P.2d 1152; 1993 Ariz. LEXIS 73 (1993).

Connecticut: State v. Esposito, 235 Conn. 802; 670 A.2d 301; 1996 Conn. LEXIS 15 (1995).

New Hampshire: State v. Cavaliere, 140 N.H. 108; 663 A.2d 96; 1995 N.H. LEXIS 103 (1995).

Pennsylvania: Commonwealth v. Crews, 536 Pa. 508; 640 A.2d 395; 1994 Pa. LEXIS 138 (1994).

Rhode Island: Soares v. Vestal, 632 A.2d 647; 1993 R.I. LEXIS 229 (1993).

Idaho: State v. Gleason, 123 Idaho 62; 844 P.2d 691; 1992 Ida. LEXIS 182 (1992) —“This Court reaffirms that the appropriate test for measuring the scientific reliability of evidence is I.R.E. 702 . . . . [which] states that '[i]f 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.'”

Georgia: Orkin v. McIntosh, 215 Ga. App. 587; 452 S.E.2d 159; 1994 Ga. App. LEXIS 1336 (1994)—“We first note that Daubert involves the application of Federal Rule of Evidence 702, which has not been adopted in Georgia. The applicable law in Georgia is OCGA § 4-9-67 . . . .”

New Jersey: State v. Fertig, 143 N.J. 115; 668 A.2d 1076; 1996 N.J. LEXIS 1 (1996)—“Recently, however, we abandoned the Frye 'general acceptance' test for the admission of expert evidence . . . . Generally speaking, our current test is whether expert testimony derives from a sound methodology supported by some consensus of experts in the field . . . [we] decline defendant's belated invitation to reject the Hurd guidelines.”

Oregon: State v. O'Key, 321 Ore. 285; 899 P.2d 663; 1995 Ore. LEXIS 51 (1995)—“We decide this case under the Oregon Evidence Code. When we cite a decision of the Supreme Court of the United States in interpreting a provision of the Oregon Evidence Code, we do so because we find the views there expressed persuasive, not because we consider this court bound to do so by our understanding of federal doctrines. Daubert rests on an interpretation of the Federal Rules of Evidence, a federal statute. As a statutory case, rather than a constitutional case, Daubert is not binding on the states. That is true even though the Oregon Evidence Code is modeled on the Federal Rules of Evidence.”

Utah: Dikeou v. Osborn, 247 Utah Adv. Rep. 9; 881 P.2d 943; 1994 Utah App. LEXIS 130—“We have reviewed Daubert and find it unpersuasive for two reasons . . . the trial court is given discretion under Rule 702 of the Utah Rules of Evidence 'to determine the admissibility of expert testimony, and to determine if the witness is qualified to given an opinion on a particular matter.'”

Wisconsin: Acker, et al. v. Sullivan, et al., 542 N.W.2d 238; 1995 Wisc. App. LEXIS 1453 (1995)—“. . . we rejected the request to replace the 'relevancy test' set forth in State v. Walstad, 119 Wis. 2d 483 (1972), with the criteria announced in Daubert . . . . The rule remains in Wisconsin that the admissibility of scientific evidence is not conditioned upon its reliability. Rather, scientific evidence is admissible if: (1) it is relevant, (2) the witness is qualified as an expert, and (3) the evidence will assist the trier of fact in determining an issue of fact. If these requirements are satisfied, the evidence will be admitted.”

Mississippi, Nevada, South Carolina and the Virgin Islands have not yet addressed Daubert. While Hawaii and North Dakota have each cited the decision in one case, it is not clear what their stance is on the new standard.