New Jersey Supreme Court Announces Adoption of Daubert-Type Standard for Criminal and Quasi-Criminal Cases in Assessing Admissibility of Expert Evidence Under Rule 702
by Richard Resch
The Supreme Court of New Jersey unanimously adopted a Daubert-type standard for determining the admissibility of expert evidence under New Jersey Rules of Evidence 702 (“Rule 702”) in all future criminal and quasi-criminal cases. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court issued its opinion on February 17, 2023. In doing so, it abandoned exclusive reliance on the Frye standard that had been used in the state for decades in criminal cases. Frye v. United States, 293 F.1013 (D.C. Cir. 1923). Notably, the state Supreme Court adopted a limited Daubert-factors approach regarding the reliability and thus admissibility of expert witness testimony in civil cases back in 2018. In re Accutane Litigation, 191 A.3d 560 (N.J. 2018).
The Court began its discussion by stating that the issue before it is a purely legal one, viz., “whether the testimony of an officer who is a certified Drug Recognition Expert (“DRE”) is admissible at trial and, if so, under what circumstances.” In order to answer this legal question, the Court explained that the reliability of the proposed evidence must be assessed.
At the trial of Michael Olenowski, the State introduced DRE testimony, over defense counsel’s objection, to prove Olenowski had driven while under the influence of a central nervous system depressant and stimulant. He was convicted by the Municipal Court (a quasi-criminal proceeding), and the Superior Court upheld the admission of the DRE evidence under Frye and affirmed. The Appellate Division also affirmed, and Olenowski appealed to the state Supreme Court.
The Court originally heard oral argument in October 2019 but concluded that the factual record was insufficient “to test the validity of DRE evidence.” Consequently, it arranged for a special master to conduct a hearing to determine whether DRE evidence “has achieved general acceptance within the relevant scientific community and therefore satisfies the reliability standard of” Rule 702. The special master produced a 332-page report in which he concluded that DRE evidence should be admissible under Frye.
However, multiple amici were involved in the matter and expressed grave concern about “false positive” rates that were “somewhere between 20% and 78%.” Because error rates are not a matter that is directly covered under Frye but is expressly considered under Daubert, the Court instructed the parties together with amici to submit supplemental briefing on “whether this Court should depart from Frye and adopt the principles of Daubert in criminal cases.”
The Court started its analysis by noting that Rule 702 governs whether expert testimony is admissible. It states: “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.”
To satisfy Rule 702, “the proponent of expert evidence must establish three things: (1) the subject matter of the testimony must be ‘beyond the ken of the average juror’; (2) the field of inquiry ‘must be at a state of the art such that an expert’s testimony could be sufficiently reliable’; and (3) ‘the witness must have sufficient expertise to offer the’ testimony.” State v. J.L.G., 190 A.3d 442 (N.J. 2018). The Court observed that the dispositive issue in this case focuses on the second requirement, i.e., whether the proposed expert testimony is reliable.
Up until the present case, the Frye standard has been used by New Jersey courts in assessing reliability in criminal cases, according to the Court. Id. The so-called “general acceptance” standard of Frye “requires trial judges to determine whether the science underlying … proposed expert testimony has ‘gained general acceptance in the particular field in which it belongs.’” Id. (quoting Frye). The party seeking to introduce the expert testimony bears the burden of clearly establishing general acceptance. State v. Cassidy, 197 A.3d 86 (N.J. 2018). Under Frye, there are three ways of proving general acceptance within the relevant scientific community: (1) expert testimony, (2) authoritative scientific and legal writings, and (3) judicial opinions. Id.
The Court stated that in civil cases the Frye standard had already been largely abandoned by the state Supreme Court for determining the reliability of expert testimony. Accutane. Instead, in civil cases, courts currently focus on the “methodology and reasoning underlying the evidence,” which is guided by the non-exhaustive factors listed in Daubert, the Court explained. Id.; see also Rubanick v. Witco Chem. Corp., 593 A.2d 733 (N.J. 1991). One of the reasons the state Supreme Court shifted away from Frye’s general acceptance standard, even before the U.S. Supreme Court decided Daubert, is its difficulty in “fairly assessing reliability in certain areas of novel or emerging fields of science.” Accutane.
The Alaska Supreme Court summed up the primary shortcoming of Frye thusly: “[Frye] excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.” State v. Coon, 974 P.2d 386 (Alaska 1999). In addition, the Court in this case criticized Frye for requiring courts to focus on “general acceptance” rather than reliability of the proposed evidence itself.
In 1993, the U.S. Supreme Court formally rejected the Frye standard for determining the reliability of proposed expert witness testimony in Daubert, holding that Frye had been “superseded by the adoption of the Federal Rules of Evidence.” Daubert. The Daubert Court proceeded to set forth a new methodology-based standard for determining admissibility: “Faced with a proffer of expert scientific testimony, . . . the trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. 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.” (emphasis added)
Finally, the Daubert Court provided a non-exhaustive list of factors to assist courts in applying the newly announced standard, as follows: (1) whether the scientific theory or technique can be, or has been, tested, (2) whether it “has been subjected to peer review and publication,” (3) “the known or potential rate of error” as well as the existence of standards governing the operation of the particular scientific technique, and (4) general acceptance in the relevant scientific community. The Daubert Court stressed that such examinations into reliability are “flexible” and the “focus … must be solely on principles and methodology, not on the conclusions that they generate.” In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the U.S. Supreme Court clarified that Daubert also applies to technical and other specialized knowledge, not only to scientific knowledge. The Kumho Court also instructed that Daubert grants trial courts with “broad latitude” in deciding how to determine reliability.
After having reviewed the two differing standards for assessing reliability, the Court concluded that “Daubert’s focus on methodology and reasoning, which we apply in civil cases, is a superior approach to criminal cases as well.” It explained that focusing “on testing, peer review, error rates, and other considerations better enables judges to assess the reliability of the theory or technique in question.” See Daubert; Accutane. A Daubert-type standard is also better suited to addressing novel and emerging areas of science and is also consistent with the state’s Rules of Evidence, the Court reasoned. Finally, the Court commented that “to the extent Frye and cases that follow it draw lines between scientific and technical or other specialized knowledge … Daubert eliminates that unworkable distinction.” That is, the standard adopted by the Court “applies not only to testimony based on scientific knowledge but also to testimony based on technical or other specialized knowledge.”
The Court pointed out that its adoption of a Daubert-type standard is in keeping with the majority of states that “have adopted some form of the Daubert standard, either explicitly or implicitly” for both civil and criminal cases. Accutane; see also Savage v. State, 166 A.3d 183 (Md. 2017) (Adkins, J., concurring) (listing 38 states that “have either explicitly adopted Daubert or held that its factors are persuasive”).
However, the Court cautioned that it is not embracing “the full body of Daubert caselaw as applied by state and federal courts.” It instructed that the non-exhaustive Daubert factors will serve to guide trial courts in performing their important role as gatekeepers, but the factors do “not limit trial judges in their assessment of reliability. The same is true for caselaw from other jurisdictions, which can be persuasive but is not controlling.”
Thus, the Court explicitly adopted “a Daubert-type standard going forward to assess the admissibility of expert evidence under [Rule 702] in criminal and quasi-criminal cases.”
Accordingly, the Court remanded the case for the special master to assess the reliability and admissibility of DRE evidence in the first instance utilizing the standard just adopted. See: State v. Olenowski, 2023 N.J. LEXIS 206 (N.J. 2023).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login