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RULE 702. [Testimony by Experts].

Reporter's Note

There are no proposals for amending Rule 702 pending discussion and recommendations by the Drafting Committee. The following is included for the information of the Committee in generating discussion concerning any amendments that should be made to Rule 702 in the wake of Daubert v. Merrell Dow Pharmaceuticals, Inc., ___U.S.___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), holding that the following four factors are to be employed in determining the admissibility of "novel scientific evidence" under Rule 702 of the Federal Rules of Evidence:

1. Has the theory or technique been tested or is subject to being tested?

2. Has the theory or technique been subjected to peer review and publication?

3. What is the known or potential rate of error in applying the particular scientific theory or technique?

4. To what extent has the theory or technique received general acceptance in the relevant scientific community?

The following has been suggested by Judge Michael B. Getty as a starting point for discussion in determining whether amendments should be made to Uniform Rule 702 to reflect the criteria established in the Daubert case for determining the admissibility of "novel scientific evidence":

Rule 702. [Testimony by Experts].

(a) Scientific Expert Testimony. If valid scientific 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 scientific training and education may testify thereto in the form of an opinion or otherwise.

For purposes of this Rule, when making preliminary assessments of validity pursuant to Rule 104(a), judges shall determine the adequacy of the scientific foundation for the testimony and, if applicable, the methodology or technique used to apply that knowledge to the specific case.

(1) The Scientific Foundation for the Testimony. In assessing the validity of the scientific foundation for expert testimony, judges must find that the basis for the expert's testimony has been tested. In addition, in order to determine the validity of those scientific tests, judges should consider, among other things,

(A) the adequacy of the research methods used to conduct these tests;

(B) whether the research supporting the expert's testimony was peer reviewed and published; and

(2) Expert Testimony Regarding Case Specific Facts. In assessing the validity of expert testimony on facts specific to the case, judges must find that the methodology or technique used to ascertain the pertinent fact or facts has been tested. In addition, judges should consider, among other things,

(A) the adequacy of the research methods used to conduct these tests;

(B) whether the research validating these methods was peer reviewed and published; and

(b) Non-Scientific Testimony. If valid technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, where scientific knowledge is unavailable or unnecessary, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Comment of Judge Getty on the Proposed Amendment to

Rule 702

Upon review and after consultation with Professor David L. Faigman who filed the Amicus brief in "Daubert" before the United States Supreme Court on behalf of a group of law professors, it is my opinion that the only rule that need be changed is Rule 702. I am attaching hereto those provisions to the rules as drafted by Professor Faigman at my suggestion . . . . [See Faigman, In Making the Law Safe for Science: A Proposed Rule for the Admission of Expert Testimony, 35 Washburn L. J. 401 (1996)]

I would also like to call to the Committee's attention an essay by Professor Faigman which appeared in the Hastings Law Journal, Vol. 46, January 1995 entitled "Mapping the Labyrinth of Scientific Evidence".

* * *

Comment of Reporter

There are a number of additional proposals which have been made for amending Rule 702 of the Federal Rules of Evidence which is currently identical to Uniform Rule 702. In the Spring, 1997, S. 79, also known as the Honesty in Evidence Act, was introduced in the United States Senate to amend Federal Rule 702 as follows:

Rule 702. Testimony by Experts

(a) In general. - 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.

(b) Adequate Basis for Opinion. -

(1) Testimony in the form of an opinion by a witness that is based on scientific, technical, or medical knowledge shall be inadmissible in evidence unless the court determines that such opinion--

(A) is based on scientifically valid reasoning;

(B) is sufficiently reliable so that the probative value of evidence outweighs the dangers specified in Rule 403; and

(C) the techniques, methods, and theories used to formulate that opinion are generally accepted within the relevant scientific, medical, or technical field.

(2) In determining whether an opinion satisfies conditions in paragraph (1), the court shall consider--

(A) whether the opinion and any theory on which it is based have been experimentally tested;

(B) whether the opinion has been published in peer-review literature; and

(C) whether the theory or techniques supporting the opinion are sufficiently reliable and valid to warrant their use as support for the proffered opinion.

(c) Expertise in the field. - Testimony in the form of an opinion by a witness that is based on scientific, technical, or medical knowledge, skill, experience, training, education, or other expertise shall be inadmissible unless the witness's knowledge, skill, experience, training, education, or other expertise lies in the particular field about which such witness is testifying.

(d) Disqualification. - Testimony by a witness who is qualified as described in subsection (a) is inadmissible in evidence if the witness is entitled to receive any compensation contingent on the legal disposition of any claim with respect to which the testimony is offered.

In March, 1997, the following H.R. 903 was introduced in the United States House of Representatives to amend Federal Rule 702:

Rule 702. Testimony by Experts

(b) Adequate basis for opinion. - Testimony in the form of an opinion by a witness that is based on scientific knowledge shall be inadmissible in evidence unless the court determines that such opinion -

(1) is scientifically valid and reliable;

(2) has a valid scientific connection to the fact it is offered to prove; and

(3) is sufficiently reliable so that the probative value of such evidence outweighs the dangers specified in rule 403.

(c) Disqualification. - Testimony by a witness who is qualified as described in subdivision (a) is inadmissible in evidence if the witness is entitled to receive any compensation contingent on the legal disposition of any claim with respect to which the testimony is offered.

(d) Scope. - Subdivision (b) does not apply to criminal proceedings.

Earlier, in 1991 the Standing Committee of the Judicial Conference of the United States recommended the following amendment to Federal Rule 702:

Testimony providing scientific, technical, or other specialized information, in the form of an opinion or otherwise, may be permitted only if (1) the information is reasonably reliable and will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, and (2) the witness is qualified as an expert by knowledge, skill, experience, training, or education to provide such testimony. [Ends with a notice requirement invoking the pre-amendment Civil Rule 26]

The Advisory Committee Note to the proposed Rule stated:

"while testimony from experts may be desirable if not crucial in many cases, excesses cannot be doubted and should be curtailed . . . . [and the courts should] reject testimony that is based upon premises lacking any significant support and acceptance within the scientific community.

Further, the Note stated:

In deciding whether the opinion evidence is reasonably reliable and will substantially assist the trier of fact, as well as in deciding whether the proposed witness has sufficient expertise to express such opinions, the court, as under present Rule 702, is governed by Rule 104(a).

The American University Law School Evidence Project has proposed amending Federal Rules 702 and 703 to deal with the Daubert issues as follows:

Revised Rule 702. Testimony by Qualification of Experts Witnesses

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 A witness is qualified as an expert by if the witness has acquired, by any means, substantial knowledge of scientific, technical, or other specialized areas , skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Revised Rule 703. Bases of Opinion Testimony by Experts

(a) General rule. Subject to subsections (b) and (c), if expert testimony will help the trier of fact understand the evidence or determine a fact in issue, a qualified witness may testify to specialized knowledge, as well as opinions and inferences drawn therefrom, without personal knowledge of the underlying data.

(b) Principles, methodologies, and applications employed. A proponent of expert testimony must demonstrate, by a preponderance of the evidence, that the scientific, technical, or other bases of the testimony, including all principles, methodologies, and applications employed by the witness in forming opinions and inferences, produce credible results.

(c) Factual basis of opinion. The facts or case specific data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. A proponent of expert testimony must make a demonstration of reliability, pursuant to Rule 803(5), for all otherwise inadmissible hearsay data relied upon by the expert. An expert may not rely upon data that is inadmissible.

A number of other proposals come from academia. A comment in the Buffalo Law Review, entitled Abandoning New York's "General Acceptance" Requirement: Redesigning Proposed Rule of Evidence 702(b) After Daubert v. Merrell Dow Pharmaceuticals, 43 Buff.L.Rev. 229 (1995), proposes the following codification of Daubert, applicable to scientific testimony only:

Rule 702. Testimony by Experts

(b) Reliable Scientific Testimony. - Testimony concerning scientific matters, or testimony concerning the result of a scientific procedure, test or experience is admissible provided: (1) the theory or principle underlying the matter, procedure, test or experiment is scientifically valid; (2) the procedure, test, or experiment is reliable and produces accurate results; and (3) the particular test, procedure or experiment was conducted in such a way as to yield an accurate result. Upon request of a party, a determination pursuant to this subdivision shall be made before the commencement of trial.

Professor Michael Graham, in the supplement to his treatise on Evidence, proposes the following amendment to Rule 702 to account for Daubert:

Rule 702. Testimony by Experts

Testimony providing scientific, technical or other specialized information, in the form of an opinion, or otherwise, may be permitted only if (1) the information is based upon adequate underlying facts, data or opinions, (2) the information is based upon an explanative theory either (a) established to have gained widespread acceptance in the particular field to which the explanative theory belongs, or (b) shown to possess particularized earmarks of trustworthiness, (3) the witness is qualified as an expert by knowledge, skill, experience, training or education to provide such information, and (4) the information will substantially assist the trier of fact to understand the evidence or to determine a fact in issue.

A comment in the Vanderbilt Law Review contains an interesting proposal to amend Rule 702 so as to establish "general acceptance" as a rebuttable presumption of reliability. See Tamarelli, Daubert v. Merrell Dow Pharmaceuticals: Pushing the Limits of Scientific Reliability, 47 Vand. L. Rev. 1175 (1994). The proposal reads as follows:

Rule 702. Testimony by Experts

A witness may testify, in the form of an opinion or otherwise, concerning scientific, technical, or other specialized information that will assist the trier of fact to understand the evidence or to determine a fact in issue, but only if (1) the information is reasonably reliable, and (2) the witness is qualified as an expert by knowledge, skill, experience, training, or education to provide that testimony.

Information normally will be considered reasonably reliable if it is based on premises, or derived from techniques, having significant support and acceptance within the relevant specialized community. A party seeking to object to a witness testifying thereto must show by a preponderance of the evidence that the information is not reasonably reliable.

Information based on premises or derived from techniques not having significant support and acceptance within the relevant specialized community normally will not be considered reasonably reliable. A party seeking to have an expert base testimony on this type of information must show by a preponderance of the evidence that this testimony is reasonably reliable.

The Vanderbilt comment states that this proposal has the advantage of addressing Daubert directly "by establishing in the text of Rule 702 that peer review and general acceptance should be the primary indicators of reliable expert testimony." Unlike Frye, however, the proposal "would not work as an absolute bar against admitting theories that are not generally accepted. Rather, it merely would establish a presumption that these theories are not reliable enough to be admitted."

Professor Starrs participated in a project sponsored by the Science and Technology Section of the ABA, the goal of which was to fashion evidentiary rules for scientific evidence. His proposal, which can be found at 115 F.R.D. 79, was published in 1987, six years before Daubert. Nonetheless, it anticipates the decision in that case. Professor Starrs' proposal reads as follows:

Rule 702. Testimony by Experts

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. But expert testimony based upon a scientific theory or technique is not admissible unless the court find that the theory or technique in question is scientifically valid for the purposes for which it is tendered.

Professor Starrs notes that the Rule is designedly general and open-ended: "Just as helpfulness to the jury and the qualifying of an expert are left undefined by the rule, so too is scientific validity. The sound discretion of the trial court, an oft-touted strength, is once again summoned to the task."

A threshold question to be considered by the Drafting Committee is whether amendments to Uniform Rule 702 ought to embrace completely the Daubert criteria governing the admissibility of "novel scientific evidence" to achieve uniformity among the several states on this issue.

First, there is a significant lack of uniformity among the several states concerning the standard to be applied in determining the admissibility of expert testimony concerning scientific, technical, or specialized knowledge. As of June 14, 1996, I completed preliminary research relating to the standards to which forty-two states adhere in determining the admissibility of 'novel scientific' evidence. I should emphasize that, as of the present time, I have neither updated nor engaged in any in-depth research on this issue in the several state jurisdictions. In this initial research, I only attempted to identify in a general way the approach followed in the several state jurisdictions. They appear to fall roughly into five different categories in addressing this issue. These are: (1) states still adhering to the Frye standard; (2) states adhering to a pre-Daubert standard of reliability; (3) states adopting the Daubert standard for admissibility; (4) states adhering to varying standards of admissibility; and (5) states in which the issue appears to be unsettled.

(1) The states still adhering to the Frye standard are: Alaska, Harmon v. State, 908 P.2d 434 (Alas. App. 1995)(DNA testing), Mattox v. State, 875 P.2d 763 (Alas. 1994)(DNA testing) and Contreras v. State, 718 P.2d 129 (Alas. 1986); Arizona, State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)(DNA testing), States v. Boles, 905 P.2d 572 (Ariz. App. 1995)(DNA testing), and State v. Bogan, 905 P.2d 515 (Ariz. App. 1995)(DNA testing); California, People v. Leahy, 8 Cal. 4th 587, 882 P.2d 321 (1994)(horizontal gaze nystagmus testing), Harris Transportation Co. v. Air Resources Board, 32 Cal. App. 4th 1472 (Cal. App. 1995)("snap-idle" testing to measure the opacity of vehicle omissions), and People v. Morganti, 43 Cal. App. 4th 643 (Cal. App. 1996)(agglutination inhibition testing and DNA testing); Colorado, Lindsey v. People, 892 P.2d 281 (Colo. 1995)(DNA testing) and People v. Lyons, 907 P.2d 708 (Colo. App. 1995)(polygraph test results); Florida, Flanagan v. State, 625 So.2d 827 (Fla. 1993)(sex offender profile evidence) and State v. Meador, 1996 Fla. App. LEXIS 4782(horizontal gaze nystagmus testing); Illinois, People v. Baynes, 88 Ill.2d 225, 58 Ill. Dec. 819, 430 N.E.2d 1070(polygraph test results); People v. Moore, 171 Ill.2d 74, 662 N.E.2d 1215 (1996)(DNA testing); People v. Watson, 257 Ill.App.3d 915, 629 N.E.2d 634 (1994)(DNA testing); and People v. Mehlberg, 249 Ill. App.3d 499, 618 N.E.2d 1168 (1993)(DNA testing); Kansas, Armstrong v. City of Wichita, 21 Kan. App.2d 750, 907 P.2d 923 (1995)(multiple chemical sensitivities testing); Maryland, Hutton v. State, 339 MD. 480, 663 A.2d 1289 (1995)(post traumatic stress disorder); and Schultz v. State, 106 Md. App. 145, 664 A.2d 60 (1995)(horizontal gaze nystagmus testing); Michigan, People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955)(Frye rule adopted in Michigan) and State v. Haywood, 209 Mich. App. 217, 530 N.W.2d 497 (1995)(declining to review applicability of standard in light of Daubert due to narrow ground upon which bloodstain evidence admitted); Minnesota, State v. Mack, 292 N.W.2d (Minn. 1980) and State v. Klawitter, 518 N.W.2d 577 (Minn. 1994) and State v. Hodgson, 512 N.W.2d 95 (Minn. 1994)(declining to review applicability of standard in light of Daubert due to ground upon which horizontal gaze nystagmus and bitemark evidence admitted); Missouri, Alsbach v. Bader, 700 S.W.2d 823 (Mo. En banc 1985)(civil cases), State v. Davis, 814 S.W.2d 593 (Mo. Banc 1991)(criminal cases) and Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852 (Mo. 1993)(declining to review whether 490.065, RSMo. Supp. 1992 supersedes Frye doctrine); Nebraska, State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994)(laser trajectory testing) and State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994)(DNA testing); New Hampshire, State v. Cavaliere, 140 N.H. 108, 663 A.2d 96 (1995)(declining to rule on admissibility of sexual profile evidence in light of Daubert); State v. Vandebogart, 139 N.H. 145, 652 A.2d 671 (1994)(declining to rule on the admissibility of DNA testing under Daubert) and State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993)(declining to rule on the admissibility of psychological testimony concerning the effects of child sexual abuse); New York, People v. Wesley, 83 N.Y.2d 417, 633 N.E.2d 451 (1994)(DNA testing); People v. Swamp, 199 A.D.2d 610, 604 N.Y.S.2d 341 (1993)(identifying controlled substances) and People v. Yates, 637 N.Y.S.2d 625 (1995)(rape trauma syndrome); North Dakota, City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994)(Frye standard not applicable to determining admissibility of horizontal gaze nystagmus test); Pennsylvania, Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977)(voiceprint identification) and Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994)(DNA testing); Utah, Dikeou v. Osborn, 247 Utah Adv. Rep. 9, 881 P.2d 943 (1994)(differences in standard of care between emergency and cardiology physicians); and Washington, State v. Riker, 123 Wash.2d 351, 869 P.2d 43 (1994)(battered woman's syndrome testimony), but see, Reese v. Stroh, 128 Wash.2d 300, 907 P.2d 282 (1995)(declining to rule on the admissibility of Prolastin therapy under Daubert).

In New York, there is a proposed New York Rule 702(a) similar to Federal Rule 702. Proposed Rule 702(b) specifically deals with scientific testimony, and reads as follows:

Testimony concerning scientific matters, or testimony concerning the result of a scientific procedure, test or experiment is admissible provided:

1. There is general acceptance within the scientific community of the validity of the theory or principle underlying the matter, procedure, test, or experiment;

2. There is general acceptance within the relevant scientific community that the procedure, test or experiment is reliable and produces accurate results; and

3. The particular test, procedure, or experiment was conducted in such a way as to yield an accurate result.

Upon request of a party, a determination pursuant to this subdivision shall be made before the commencement of trial.

In Hawaii, the Frye standard is combined with a reliability standard introduced in the blackletter of Rule 702 in 1992 as follows:

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. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert. See 1992 Haw. Sess. L. Act 191, 2(7) at 410.

See further, State v. Maelega, 80 Haw. 172, 907 P.2d (1995)("extreme mental or emotional disturbance manslaughter") and State v. Montalbo, 73 Haw. 130, 828 P.2d 1274 (1992)(DNA evidence).

A modified Frye standard of admissibility has been applied in Alabama in determining the admissibility of DNA test results. See the pre-pronged test of Ex parte Perry, 586 So.2d 242 (Ala. 1991), 36-18-20 through 39, Ala. Code 1975 and Turner v. State, 1996 Ala. Cr. App. LEXIS 118 and Smith v. State, 1995 Ala. Cr. App. LEXIS 413.

(2) The states adhering to a pre-Daubert standard of reliability are: Arkansas, Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996) and Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991)(DNA testing); Delaware, Nelson v. State, 628 A.2d 69 (Del. 1993)(DNA testing); State v. Ruthardt, 1996 Del. Super LEXIS 84(horizontal gaze nystagmus testing) and State v. Sailor, 1995 Del. Super LEXIS 518(polygraph test results); Idaho, State v. Faught, 908 P.2d 566 (Ida. 1995)(DNA testing) and State v. Kelly, 909 P.2d 647 (Ida. App. 1996)(psychological profile of sex offenders); Iowa, Hutchison v. American Family Mutual Insurance Company, 514 N.W.2d 882 (Iowa 1994)(testimony of neuropsychologist on causation); Montana, Barmeyer v. Montana Power Co., 202 Mont. 185, 657 P.2d 594 (1983)(corrosion analysis); Oregon, State v. Brown, 297 Ore. 404, 687 P.2d 751 (1984)(polygraph test results); Texas, Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992)(DNA testing); and Wyoming, Rivera v. State, 840 P.2d 943 (Wyom 1992)(DNA testing).

In Indiana, see Steward v. State, 652 N.E.2d 490 (Ind. 1995)(child sexual abuse accommodation syndrome), interpreting Indiana's Rule 702(b) requiring that "[e]xpert scientific testimony is admissible only if the court is satisfied that scientific principles upon which the expert testimony rests are reliable" and Hottinger v. Trugreen Corporation, 1996 Ind. App. LEXIS 666(chemical injury cause by exposure to Trimec 2-4-D). See further, the Indiana version of Rule 702 which is somewhat like that of Hawaii, in that it adds a new subdivision to deal with the reliability question. But it is different in several respects as follows:

(a) 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.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

(3) The states adopting the Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) standard for admissibility are: Iowa, Hutchison v. American Family Mutual Insurance Company, 514 N.W.2d 882 (Iowa 1994)(testimony of neuropsychologist on causation); Kentucky, Mitchell v. Kentucky, 908 S.W.2d 100 (Ky. 1995)(DNA testing) and Rowland v. Kentucky, 901 S.W.2d 871 (Ky. 1995)(hypnotically enhanced testimony); Louisiana, State v. Foret, 628 So.2d 1116 (La. 1993)(child sexual abuse accommodation syndrome), and State v. Quatrevingt, 1996 La. LEXIS 609(DNA testing); Montana, State v. Moore, 268 Mont. 20, 885 P.2d 457 (1994)(DNA testing) and State v. Cline, 909 P.2d 1161 (Mont. 1996)(determining age of fingerprint through use of magnetic powder); New Mexico, State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1994)(post traumatic stress disorder) and State v. Anderson, 118 N.M. 284, 881 P.2d 29 (1994)(DNA testing); Oklahoma, Taylor v. State, 889 P.2d 319 (Okl. Cr. 1995)(DNA testing); Oregon, State v. O'Key, 321 Ore. 285, 899 P.2d 663 (1995)(horizontal gaze nystagmus testing); South Dakota, State v. Hofer, 512 N.W.2d 482 (S.D. 1994)(intoxilyzer test results) and State v. Moeller, 1996 S.D. LEXIS 64(DNA testing); Texas, E. I. DuPont Nemours and Company, Inc. v. Robinson, 38 Tex Sup J. 852, 1995 Tex. LEXIS 10(damage to pecan orchard caused by contaminated Benlate 50 DF); Vermont, State v. Streich, 658 A.2d 38 (Vt. 1995)(DNA testing) and State v. Brooks, 643 A.2d 226 (Vt. 1993)(data master infrared testing equipment for DUI); West Virginia, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 114 S.Ct. 2137 (1994)(hedonic damages); and State v. Beard, 194 W.Va. 740, 461 S.E.2d 486 (12995)(polygraph test results); and Wyoming, Springfield v. State, 860 P.2d 435 (Wyo. 1993)(DNA testing).

(4) The states adhering to varying standards of admissibility are: Georgia, Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982) and Prickett v. State, 220 Ga. App. 244, 469 S.E.2d 371 (1996)(whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure rests upon the laws of nature"); New Jersey, Landrigan v. Celotex Corp., 127 N.J. 404, 605 A.2d 1079 (1992), Rubanick v. Witco Chem. Corp., 125 N.J. 421, 593 A.2d 733 (1991) and State v. Fertig, 143 N.J. 115, 668 A.2d 1076 (1996)("whether expert testimony derives from a sound methodology supported by some consensus of experts in the field"); and Wisconsin, Watson v. State, 64 Wis.2d 264, 219 N.W.2d 398 (1974), State v. Walstad, 119 Wis.2d 483, 351 N.W.2d 469 (1984) and State v. Peters, 192 Wis.2d 674, 534 N.W.2d 867 (1995)(whether the scientific evidence is relevant, the witness is qualified as an expert and the evidence will assist the trier in determining an issue of fact).

(5) The states in which the issue appears to be unsettled are: Connecticut, State v. Tevfik, 231 Conn. 115, 646 A.2d 169 (1994)(applying Frye test to DNA testing), State v. Esposito, 235 Conn. 802, 670 A.2d 301 (1996)(equivocating on applicability of Frye and Daubert standards in determining admissibility of polygraph test results) and State v. Hunter, 236 Conn. 907, 1996 Conn. LEXIS 71 and State v. Porter, 236 Conn. 908, 1996 Conn. LEXIS 72(certification for appeal on the issue of whether the Supreme Court should reconsider the applicability of the Frye test in determining the admissibility of polygraph evidence in light of the decision in Daubert); Massachusetts, Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994)(applying Daubert test to DNA testing), but see Commonwealth v. Smith, 35 Mass. App. Ct. 655, 624 N.E.2d 604 (1993)(defers applicability of Daubert test in determining admissibility of retrograde extrapolation in determining alcohol level in blood); Ohio, State v. Clark, 101 Ohio App.3d 389, 655 N.E.2d 795 (1995)(Daubert inapplicable to accident reconstruction utilizing computer-assisted or electronic drafting techniques); and Rhode Island, In re Odell, 672 A.2d 457 (R.I. 1996)(admissibility of polygraph evidence).

In 1994, Ohio Rule 702 was amended because the previous rule, which was identical to Federal Rule 702, had "proved to be uninformative and, at times, misleading." The amended Ohio Rule 702, insofar as it applies to reliability, reads as follows:

Rule 702. Testimony by Experts

A witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay person or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements the theory;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

The Rule was intended to codify Ohio law, which had rejected Frye as the exclusive test for determining the admissibility of expert testimony.

Second, as I have observed elsewhere,

[t]he factors delineated by the Supreme Court in the Daubert case in determining the admissibility of expert testimony under Rule 702 are not free of difficulty. First, as noted by dissenting Chief Justice Rehnquist, the majority of the Court seizes upon the words "scientific knowledge" in Rule 702 as the basis for identifying the four factors relevant to the admissibility of novel scientific evidence. Do these factors also apply to the expert seeking to testify on the basis of "technical, or other specialized knowledge" to which Rule 702 also applies? Expert testimony relating to such areas of expertise as hypnotically refreshed testimony, the battered woman's syndrome, or the child accommodation syndrome, arguably falls within "technical, or other specialized knowledge," even though in such social science areas it would be rare that such evidence could meet the testability or falsifiability and potential rate of error factors required by the Daubert case. At the same time, however, to the extent such gray areas are classified within Rule 702, the holding of the Daubert case would appear to require trial courts to evaluate such evidence for reliability-validity as a condition to admissibility.

Second, suppose the proffered evidence involves only an application of a scientific theory or technique which concededly meets the minimally required four factors of admissibility enunciated in Daubert. Do applications of scientific theory or technique fall within the realm of "technical, or otherwise specialized knowledge?" Are these subject to the reliability-validity factors of Daubert, or of something else?

Third, as discussed in Section 26.08, suppose the expert is testifying on a basis of experience, such as automobile mechanics or skeletal configurations. It is doubtful that such evidence could be classified as "scientific," although it might very well qualify as "technical" or "specialized" knowledge. In such cases it seems that the Daubert factors ought not to govern admissibility, although it is by no means made clear in the decision.

In addition to the interpretive problems created by the Supreme Court's focus in the Daubert case on the language "scientific knowledge," the parties and amici also expressed concern that abandonment of the Frye "general acceptance" standard as the exclusive requirement for admissibility "will result in a 'free-for-all' in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions." In rejecting this concern the majority of the Supreme Court observed that the respondent appeared "overly pessimistic about the capabilities of the jury, and of the adversary system generally." It observed:

Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

The decision also raises the question of the extent to which trial judges are now required to fulfill the role of "amateur scientists" in ruling on the admissibility of novel scientific evidence. The dissenting Chief Justice, while conceding "that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony," does not believe that "it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role." In contrast, the majority expressed the view that it is "confident that federal judges possess the capacity to undertake this review." This is perhaps problematic and raises the question of whether a majority of the federal judges are either "capable," or "interested," in conducting an inquiry to determine the reliability-validity of novel scientific evidence under the Daubert factors governing admissibility. The result may very well be one of the trial judge erring on the side of admissibility through the application of a "liberal" standard in determining reliability-validity without regard to the balancing process mandated by Rule 403 of the Federal Rules and placing an undue reliance on cross-examination and the presentation of contrary evidence to expose weaknesses in the proponent's expert evidence. It is one thing to conclude, as the dissenting Chief Justice Rehnquist did, "that the Frye rule did not survive the enactment of the Federal Rules of Evidence." It is another thing to devise a set of reliability-validity standards which imposes on trial judges "either the obligation or the authority to become amateur scientists in order to perform that role." It would have perhaps been wiser to remove any doubt as to the survival of the Frye rule in Rule 702 of the Federal Rules, but leave it to the task of the trial judge on a case-by-case basis to determine whether the proffered evidence would "assist the trier of fact to understand the evidence or determine a fact in issue."

A number of state courts have also adopted a reliability approach to admissibility in lieu of the more rigid Frye standard, but with less rigidity than that developed in the Daubert case. Most notably, in interpreting Rules 401, 403 and 702 of the Maine Rules of Evidence based on the Federal Rules, the Supreme Court of Maine has adopted the relevancy-reliability versus unfair prejudice standard. It reasoned, first, the adoption of Frye standard "would be at odds with the fundamental philosophy of our Rules of Evidence, as revealed more particularly in Rules 402 and 702, generally favoring the admissibility of expert testimony whenever it is relevant and can be of assistance to the trier of fact." Second, the Court also reasoned that this more flexible approach would obviate the difficulties courts had experienced in applying the Frye standard of ascertaining the particular scientific community to which the evidence belongs and of determining its general acceptance within the defined scientific community. The Court concluded as follows:

On the approach we adopt the presiding Justice will be allowed a latitude, which the Frye rule denies, to hold admissible in a particular case proffered evidence involving newly ascertained, or applied, scientific principles which have not yet achieved general acceptance in whatever might be thought to be the applicable scientific community, if a showing has been made which satisfies the Justice that the proffered evidence is sufficiently reliable to be held relevant.

See 2 Whinery, Oklahoma Evidence, Commentary on the Law of Evidence 2606, pp. 553-555 (1994).[Footnotes Omitted]

Another concern is whether any amendments to Uniform Rule 702 ought to deal with issues other than insuring the reliability of expert testimony. For example, the question arises whether any amendments to Rule 702 ought to address areas of procedural concern. See, for example, Taylor v. State, 889 P.2d 319 (Okl.Cr. 1995), in which the Oklahoma Court of Criminal Appeals abandoned the Frye general acceptance test and adopted the "more structured and yet flexible admissibility" standard of the Daubert case and held that DNA (deoxyribonucleic acid) match evidence obtained through RFLP (restriction fragment length polymorphism) analysis and DNA statistics calculated through standard population genetics formulas met the Daubert criteria. It then dealt with the necessity for conducting a pretrial admissibility hearing by distinguishing those cases in which scientific or technical evidence had previously been determined to be admissible under the Daubert criteria and those cases in which admissibility had not previously been determined. In the view of the Court, a pretrial hearing is not necessary in the former case although the admissibility of the evidence in such cases is still subject to attack on the "weight and credibility" of the proffered evidence through cross-examination and testimonial challenges.

If the admissibility of scientific evidence and technical evidence has not previously been adjudicated to be admissible, a pretrial hearing must be held to determine its admissibility with the court outlining the following procedure in such cases:

The purpose of this hearing will be to determine whether such evidence is sufficiently "reliable" and "relevant" to warrant admission. This evidence may be considered "reliable" if it is grounded in the methods and procedures of science. The "relevancy" component simply requires that scientific or technical evidence bear a valid scientific connection to the pertinent inquiry and thereby assist the trier of fact in assessing the issues. Finally, the trial court should consider whether the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. This Court will independently review a trial judge's decision admitting or excluding novel scientific or technical evidence to determine whether it passes muster under Daubert.

Taylor v. State, supra, at 339.

Another area of concern may involve the question of the review of the admissibility of scientific or technical evidence under the Daubert criteria previously determined to be admissible under a different standard. For example, in Romano v. State, 909 P.2d 92 (Okl.Cr. 1995), the court held that it would "not apply the Daubert analysis retroactively to scientific subjects previously accepted as valid [under the Frye standard] for expert testimony." Id. at 112. Any challenge to such expert testimony will be left to the jury to determine the weight to be given to the expert testimony.