DNA EVIDENCE: CHALLENGING ADMISSIBILITY
Donald M. Thompson - October, 2009
EVIDENTIARY STANDARDS FOR THE
ADMISSION OF EXPERT TESTIMONY:
The New York rule
Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]: Expert testimony based on scientific
principles or procedures is only admissible if the principle or procedure is generally accepted as
reliable within the relevant scientific community.
“Reliability” is the touchstone for admission. A finding of reliability may be based on:
judicial notice, prior judicial opinions, and/or testimony and other evidence admitted at a hearing.
Reliability relates to both (1) the scientific procedure employed, and (2) the facts relied
upon by the expert in conducting her testing or reaching her opinion, since A(the scientific
procedure) + B(the facts) + C (the expert’s conclusion).
Reliability of the facts relied upon by an expert:
An expert’s opinion may rest on: (1) evidence in the record; or (2) facts personally known
to the expert; or (3) material that is not in evidence or personally known to the expert, but is
accepted in the profession as reliable; or (4) material that is not in evidence, personally known to
the expert, or accepted in the profession as reliable, but is obtained from a witness subject to
cross-examination at trial (People v. Sugden, 35 N.Y.2d 453; People v. Stone, 35 N.Y.2d 69;
Prince, Richardson on Evidence, 11th Ed. [Farrell], § 7-308, p. 470).
In Sugden, the defendant unsuccessfully moved to strike the opinion of the People’s
psychiatrist because the expert based his opinion, in part, on the out-of-court statement of a
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witness/accomplice who testified at trial. The Court of Appeals affirmed Sugden’s conviction.
The question left unanswered by Sugden was whether an expert may properly base his or her
opinion on the out-of-court statement of a non-testifying codefendant.1
Boiling it down, is the out-of-court statement of a non-testifying codefendant the type of
information commonly accepted by medical examiners as reliable when rendering an expert
opinion as to cause of death (since according to the rationale of Court of Appeals in Sugden, the
medical examiner was permitted to rely on the statement of the codefendant only if such material
“is of a kind accepted in the profession as reliable in forming a professional opinion” [People v.
Angelo, 88 N.Y.2d 217, 222, citing People v. Sugden, 35 N.Y.2d 453, 460-461; see also, People
v. Jones, 73 N.Y.2d 427, 430; Hambsch v. New York City Transit Authority, 63 N.Y.2d 723,
726])?
To meet this standard, the material upon which the expert relies must be generally
accepted as reliable in the scientific community (People v. Angelo, 88 N.Y.2d 217, 223; see also,
Frye v. United States, 293 F. 1013 [D.C.Cir.]; People v. Wesley, 83 N.Y.2d 417, 422; People v.
Hughes, 59 N.Y.2d 523, 537; People v. Middleton, 54 N.Y.2d 42, 49), since “an expert’s opinion
is only as sound as the facts upon which it is based” and “an expert’s opinion not based on fact is
worthless” (People v. Jones, 73 N.Y.2d 427, 430, citing Caton v. Doug Urban Construction, 65
N.Y.2d 909, 911; see also, Kracker v. Spartan Chemical Co., 183 A.D.2d 810; Interstate Cigar
Co. v. Dynaire Corp., 176 A.D.2d 699; Hugelmaier v. Sweden, 144 A.D.2d 934; People v. Hess,
1
Although the psychiatrist in Sugden based his opinion, in part, on the statement of a nontestifying witness/accomplice, defendant apparently did not move to strike the psychiatrist’s
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140 A.D.2d 895, lv. denied, 72 N.Y.2d 957). Once reliability is established, the expert may
properly consider information which would otherwise be inadmissible hearsay (Borden v. Brady,
92 A.D.2d 983, 984 [concurring opinion], 461 N.Y.S.2d 497; see also, O’Shea v. Sarro, 106
A.D.2d 435).
The party offering the expert’s opinion has the burden of demonstrating that it is
admissible including, where relevant, that the material upon which the expert’s opinion is based
is of a type generally accepted as reliable in the scientific community (see, Hambsch v. New York
City Transit Authority, 63 N.Y.2d 723; People v. Middleton, 54 N.Y.2d 42; People v. Crosby,
116 A.D.2d 731). Where the offering party fails to establish that the material relied upon by the
expert is of a type generally accepted as reliable in the scientific community, the expert’s opinion
is inadmissible (People v. Angelo, 88 N.Y.2d 217 [polygraph evidence]; People v. Shedrick, 66
N.Y.2d 1015, 1018 [same]; Lee v. Shields, 188 A.D.2d 637 [medical observations of nontestifying acupuncturist]; People v. Forgione, 134 A.D.2d 514 [entries in victim’s diary]).
In order to meet this burden, the offering party must produce evidence establishing the
reliability of the out-of-court material (People v. Brown, 67 N.Y.2d 555, cert. denied, 479 U.S.
1093; Hambsch v. New York City Transit Authority, 63 N.Y.2d 723; People v. Hughes, 59
N.Y.2d 523, 537; People v. Wilson, 133 A.D.2d 179; Borden v. Brady, 92 A.D.2d 983, 984;
People v. Gupta, 87 A.D.2d 991; People v. Miller, 57 A.D.2d 668, 669) and meeting this burden
is a prerequisite to the admission of the expert testimony offered (People v. Sugden, 35 N.Y.2d
testimony on that basis.
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453, 461 [noting that, “it would be unjust to permit the liberal use of out-of-court material”];
People v. Wilson, 133 A.D.2d 179).
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The Federal rule
Federal Rules of Evidence 702 and 703, tempered by Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 [1993]: The trial court must act as the “gatekeeper”
to insure the relevance and reliability of expert testimony (see also, Kumho Tire Co. v.
Carmichael, 526 U.S. 137 [1999] [same]).
Standards for admission under Daubert:
1. Whether the theory or technique in question can be (and has been) tested;
2. Whether the theory or technique has been subjected to peer review and
publication (insuring soundness and reliability of the methodology and analysis
employed;
3. A known actual or potential rate of error, together with the existence and
maintenance of standards for the technique’s execution; and
4. A determination of whether the theory or technique has gained “general
acceptance” within the relevant scientific community (although this is only a factor, not
determinative, as under the Frye test).
What is the federal test for reliability of the factual information referred to by
experts in reaching their conclusions? See Howard v. Walker, 406 F.3d 114 [2nd Cir.
2005]:
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Trial courts [must] exercise the authority to ensure that an expert’s
testimony rests upon reliable bases and foundation. . . [and] as an expert,
the witness herself “is assumed ‘to have the skill to properly evaluate the
hearsay, giving it probative force appropriate to the circumstances.’ ” . . .
Since the Supreme Court’s ruling in Daubert, however, it has been clear
that the fact that experts generally rely on a particular methodology or
source of information is neither necessary nor sufficient to ensure
admissibility at trial.
In other words, simple assurance by an expert that the methodology used conforms
with that employed by similar experts in that field does not guarantee admissibility of the
expert’s opinion under the federal standard. Compare this against the New York test.
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