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Alaska v. Coon (3/5/99), 974 P 2d 386
<![CDATA[
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, ) Supreme Court No. S-6893
)
Petitioner, ) Court of Appeals No. A-4764
)
v. ) Superior Court No.
) 3PA-S92-071 Cr.
GEORGE L. COON, )
) O P I N I O N
Respondent. )
______________________________) [No. 5091 - March 5, 1999]
Petition for Hearing from the Court of Appeals
of the State of Alaska, on appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Petitioner. George Coon, pro se, Anchorage.
Mauri Long, Dillon & Findley, P.C., Anchorage,
for Amicus Curiae Alaska Academy of Trial
Lawyers. G. Blair McCune, Deputy Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Amicus Curiae Alaska
Public Defender Agency. Gary A. Zipkin and
Nelleene A. Boothby, Guess & Rudd, Anchorage,
for Amicus Curiae Defense Counsel of Alaska,
Inc. Jonathan Hoffman, Martin, Bischoff,
Templeton, Langslet & Hoffman, Anchorage, Hugh
F. Young, Jr., Product Liability Advisory
Council, Inc., Reston, Virginia, and Mary A.
Wells, Suanne M. Dell, Gregory E. Sopkin,
Wells, Anderson & Race L.L.C., Denver,
Colorado, for Amicus Curiae Product Liability
Advisory Council. Rex Lamont Butler and Linda
S. Thomas, Rex Lamont Butler and Associates,
Anchorage, for Amicus Curiae Rex Lamont Butler
and Associates.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Fabe, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
FABE, Justice, concurring in part, and
dissenting in part.
1. INTRODUCTION
A jury found George Coon guilty of making three
terroristic telephone calls. We must decide whether the superior
court erred in admitting opinion evidence, based on a voice
spectrographic analysis, that Coon made those calls. Applying the
Alaska Rules of Evidence and the standard for admitting novel
scientific opinion evidence, articulated by the United States
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), we hold that it was not error to admit that
evidence, and affirm Coon's conviction.
2. FACTS AND PROCEEDINGS
Three messages threatening David Rudolph's life were left
on Deborah Rudolph's telephone answering machine. Deborah, Coon's
former daughter-in-law, recognized the recorded voice as Coon's.
The State charged Coon under former AS 11.56.810(a)(2) with
terroristic threatening.
The State retained a voice analysis expert, Steve Cain,
who compared the voice on the answering machine with verbatim voice
exemplars provided by Coon. At Coon's 1992 trial, the superior
court held a hearing outside the jury's presence to determine
whether Cain's testimony would be admissible under Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923). The superior court found
that Cain's testimony was relevant and would assist the jury. It
therefore held that the evidence was admissible under Alaska
Evidence Rule 702. The court also concluded that spectrographic
analysis of voices satisfied the Frye test for admitting novel
scientific evidence, and that the identification of voices by
analyzing spectrograms had been generally accepted by courts and
was a reliable technique. The jury then heard Cain express his
opinions that Coon made the first telephone call, and that there
was a high probability Coon also made the second and third calls.
Cain described for the jury the scientific foundation for his
opinions. The jury found Coon guilty of terroristic threatening.
On appeal, the Alaska Court of Appeals held that the
appellate record did not support admitting Cain's testimony at
trial. 1 It reasoned that the State had not presented evidence
concerning the relevant scientific community and whether that
community generally accepted voice spectrographic analysis. It
noted that the superior court had made no findings on those topics,
contrary to the requirements of Frye. It remanded, reasoning that
the State might be able to establish that voice spectrographic
analysis met the Frye standard for admissibility. Citing Contreras
v. State, 718 P.2d 129 (Alaska 1986), where we adhered to the Frye
standard, the court of appeals declined to address the State's
argument that the Frye standard was no longer viable in Alaska
following adoption of the Alaska Rules of Evidence and announcement
of the Daubert opinion.
Petitioning for hearing, the State asked us to consider
the same arguments. It also argued that the trial court's ruling
satisfied Daubert. We granted the State's petition. Following
briefing and oral argument, we remanded with directions that the
superior court enter findings of fact and conclusions of law about
whether Cain's testimony was admissible under Evidence Rule 703.
The order also required findings of fact and conclusions of law
about the admissibility of the proffered testimony under the Frye
and Daubert standards. We retained jurisdiction. Entering
separate findings and conclusions for each standard, the superior
court ruled on remand that the evidence was admissible under both
tests.
We then asked the parties and possible amici curiae to
file briefs discussing whether to retain Frye or to adopt the test
articulated in Daubert to determine the admissibility of scientific
evidence. Five amici curiae -- the Alaska Academy of Trial Lawyers
(AATL), the Alaska Public Defender Agency (APDA), the Defense
Counsel of Alaska (DCA), the Product Liability Advisory Counsel
(PLAC), and Rex Lamont Butler and Associates (Butler) -- submitted
briefs thoroughly discussing the issues presented. We thank them
for their valuable assistance.
3. DISCUSSION
1. Frye, Daubert, and the Rules of Evidence
The State asks us to abandon the scientific evidence test
discussed in Frye and adopt the "more flexible"standard announced
in Daubert. Whether to adopt a new standard for admitting evidence
involves the interpretation of the Alaska Rules of Evidence and is
therefore a legal question to which this court applies its
independent judgment, adopting the rule most persuasive "in light
of reason, precedent and policy."2
Before Daubert was issued, Frye was the dominant standard
for the admissibility of scientific evidence in federal and many
state courts. 3 We adopted the Frye standard in Pulakis v. State,
476 P.2d 474, 478-79 (Alaska 1970).
The Frye court held the results of a crude lie detector
test, based on the examinee's blood pressure, to be inadmissible to
show a criminal defendant's innocence. 4 The court's entire
analysis consisted of one paragraph and cited no supporting
authority:
Just when a scientific principle or discovery
crosses the line between the experimental and
demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential
force of the principle must be recognized, and
while courts will go a long way in admitting
expert testimony deduced from well recognized
scientific principle or discovery, the thing
from which the deduction is made must be
sufficiently established to have gained
general acceptance in the particular field in
which it belongs.[5 ]
The court concluded that the systolic blood pressure deception test
had "not yet gained such standing and scientific recognition among
physiological and psychological authorities"as to be admissible
into evidence. 6
Seventy years later in Daubert, the United States Supreme
Court ruled that the Federal Rules of Evidence, adopted in 1975,
had superseded the Frye "general acceptance"test for admitting
scientific evidence. 7 The plaintiffs in Daubert were minor
children with serious birth defects. 8 They alleged that the birth
defects resulted from their mothers' ingestion of Bendectin, a
prescription anti-nausea drug, during pregnancy. They sought to
introduce expert testimony that Bendectin was a teratogen, a
substance capable of causing malformations in fetuses. 9 The trial
court refused to admit the testimony and entered a defense
judgment. 10 The Ninth Circuit affirmed, but the Supreme Court
vacated the judgment and remanded. 11 So ruling, the Court stated
that "a rigid 'general acceptance' requirement would be at odds
with the 'liberal thrust' of the Federal [Evidence] Rules and their
'general approach of relaxing the traditional barriers to 'opinion'
testimony.'"12 The Court concluded that the "austere"Frye "general
acceptance"standard, "absent from, and incompatible with, the
Federal Rules of Evidence, should not be applied in federal
trials."13
The Court delineated a standard that requires the trial
judge to "determine at the outset, pursuant to [Federal Rule of
Evidence] 104(a), 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."14 This two-step inquiry
requires 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."15 The Court also provided a non-exhaustive
list of factors courts may use in making this inquiry. These
included (1) whether the proffered scientific theory or technique
can be (and has been) empirically tested (i.e., whether the
scientific method is falsifiable and refutable); (2) whether the
theory or technique has been subject to peer review and publication
(although publication "is not a sine qua non of admissibility");
(3) whether the known or potential error rate of the theory or
technique is acceptable, and whether the existence and maintenance
of standards controls the technique's operation; and, echoing Frye,
(4) whether the theory or technique has attained general
acceptance. 16
The Court offered "general observations"concerning
publication, peer review, and other factors, and how they pertain
to scientific validity.
The inquiry envisioned by Rule 702 is, we
emphasize, a flexible one. Its overarching
subject is the scientific validity -- and thus
the evidentiary relevance and reliability --
of the principles that underlie a proposed
submission. The focus, of course, must be
solely on principles and methodology, not on
the conclusions that they generate.[17]
Daubert thus requires trial courts to ensure that scientific
evidence is both relevant and reliable. The opinion is widely
regarded as imposing a more rigorous "gatekeeper"function on trial
courts than Frye did. 18
In 1986, before the Supreme Court announced Daubert, but
after we adopted rules of evidence in 1979 modeled after the
Federal Rules of Evidence, we rejected an argument by the State in
Contreras that the Federal Rules of Evidence had replaced Frye. 19
Recognizing that the federal rules did not mention the Frye test,
we said that "[w]e believe it unlikely that this silence was meant
to overturn long-established rules of admissibility based on Frye
. . . ."20 Although we did not expressly say so, we implicitly held
that the Frye standard was not inconsistent with the Alaska Rules
of Evidence. We also noted that "we have held other pre-existing
rules to survive adoption of the rules of evidence."21 Noting that
we had adopted Frye in Pulakis, we declined to question Frye. 22
We have not revisited the question since deciding
Contreras. We noted the existence of Daubert in Mattox v. State,
Department of Revenue, 875 P.2d 763, 764 n.2 (Alaska 1994), but
declined to consider the issue. The Alaska Court of Appeals has
commented on the conflict between Frye and Daubert, but in
conformity with Contreras, it has continued to apply the Frye
standard. 23 In its Memorandum Opinion and Judgment in this case,
the court of appeals stated that, given our adherence in Contreras
to the Frye standard, "we believe that . . . the proper course of
action is for us to follow the existing standard."24
We now reconsider the standard in light of Daubert's
holding that Frye is inconsistent with the Federal Rules of
Evidence. Because the trial court found Cain's opinion evidence to
be admissible under both tests, and assuming that it applied each
test correctly, it can be argued that there is no reason for us to
resolve a legal issue that is not dispositive of the outcome of
this petition. We nonetheless choose to reach the Frye/Daubert
issue because the parties and the amici have thoroughly and
skillfully discussed the reasons why we should or should not adopt
Daubert in place of Frye. Postponing a decision for another day
would be unlikely to give us the benefit of better advocacy.
Further, to the extent that this issue relates to our rules of
evidence, it implicates our rule-making responsibility.
Although we are not bound by the Supreme Court's
conclusion, its analysis of the corresponding federal rules is
helpful and, moreover, has triggered a wealth of useful critical
comment. 25
2. Ex Post Facto Prohibition
Before deciding whether Frye remains ascendant, we
consider, and reject, Coon's argument that the federal and state
constitutional prohibitions on ex post facto legislation apply to
judicial decisions thus barring the application of the 1993 Daubert
decision to his 1992 trial. 26 We reach this conclusion because
there is no support for Coon's proposition in federal or state law.
On its face, the federal ex post facto prohibition
applies only to legislative acts, not judicial decisions. 27 We
construe our state prohibition no differently than the federal
prohibition. 28 Unforeseeable judicial enlargements of criminal
statutes have been struck down as violative of due process when
applied retroactively. 29 But that is not the case here.
Even if we were to apply the prohibition on ex post
facto laws to judicial decisions, changes to rules governing the
admissibility of evidence do not violate it. In Thompson v.
Missouri, 171 U.S. 380, 387 (1898), the United States Supreme Court
stated that
[W]e cannot perceive any ground upon which to
hold a statute to be ex post facto which does
nothing more than admit evidence of a
particular kind in a criminal case upon an
issue of fact which was not admissible under
the rules of evidence as enforced by judicial
decisions at the time the offense was
committed.[30]
The prohibition on ex post facto laws has been construed as
applicable only to penal legislation.31
Coon also asserts that retrospective application of
Daubert to his case would deny him substantive and procedural due
process of law and violate his right to equal protection. His
cursory discussion of these issues is inadequate to preserve them.
We consider them waived. 32
3. The Alaska Rules of Evidence
The State argues that we should abandon the Frye
standard. It asserts that Frye has become outdated and inadequate
for modern litigation, where many cases involve sophisticated
scientific data and knowledge. It argues that Frye uses social,
rather than scientific, criteria for determining reliability and
validity when reviewing a novel scientific technique. This causes
trial courts simply to "count hands"to determine whether
scientists in the relevant scientific community accept the
technique as reliable, and "abdicates"judicial responsibility for
determining admissibility to scientists uneducated in the law.
The State also argues that a few dissenters within a
scientific community may prevent a finding of general acceptance,
leading to over-representation of the dissenters' views. In
addition, the State contends that Frye's conservative nature causes
a "gross time lag"between the development of a new scientific
technique and its judicial admissibility. This can cause certain
cutting edge science to become obsolete before it is admissible
under Frye.
Our new evidence rules became effective in 1979, nine
years after we decided Pulakis. 33 We there approvingly quoted the
Frye standard in holding that polygraph test results had been
properly excluded. 34
Several of our evidence rules bear on the admissibility
of scientific evidence. Evidence Rule 104(a) assigns to the trial
court the duty to determine preliminary questions concerning the
qualification of a person to be a witness and the admissibility of
evidence. Evidence Rule 401 defines what evidence is relevant.
Evidence Rule 403 allows exclusion of relevant evidence for such
reasons as prejudice, confusion, and waste of time. Evidence Rule
702 allows experts to offer helpful opinion testimony. 35 Evidence
Rule 703 allows experts to base opinions on facts or data of a type
reasonably relied upon by experts in the field. 36 Thus, expert
opinion evidence is admissible if the trial court (exercising its
authority under Rule 104(a)) determines that (1) the evidence is
relevant (Rule 401); (2) the witness is qualified as an expert
(Rule 702(a)); (3) the trier of fact will be assisted (Rule
702(a)); (4) the facts or data on which the opinion is based are of
a type reasonably relied upon by experts in the particular field in
forming opinions upon the subject (Rule 703); and (5) the probative
value of the evidence is not outweighed by its prejudicial effect
(Rule 403). 37
Nothing in our evidence rules requires or implies that
any single criterion, let alone Frye's general acceptance standard,
controls admission of scientific opinion evidence. The commentary,
which predated Daubert, observed that Evidence Rule 703 "attempts
to chart a path between the rigid approach of [Frye] and the
minimal relevance approach of Rule 401."38 It also mentioned
several Daubert-like factors and noted:
Even though Rule 403 might be deemed
sufficient protection against the dangers of
relatively untested evidence, Rule 703 is
drafted so as to remind trial judges that
innovative attempts to offer expert evidence
may involve evidence that is superficially
attractive, but which is problematic for one
or more of the following reasons: . . . 3)
while the expert evidence is plainly relevant,
the rate of error associated with the
technique that produced the evidence is
unknown and the trier of fact is therefore
unable to properly evaluate the evidence; 4)
the expert evidence is the subject of great
controversy among the nation's experts and it
would be inappropriate for a court or jury to
resolve the controversy in any particular
case. See, e.g., People v. Kelly, 549 P.2d
1240 (Cal. 1976) (rejecting voiceprint
evidence).[39]
Although the United States Supreme Court stated in
Daubert that Federal Evidence Rule 702 is the "locus"for
determining the admissibility of scientific evidence, 40 the
commentary to the Alaska Rules of Evidence provides support for the
State's view that Alaska Rule of Evidence 703 is also a source for
an approach broader than the Frye standard.
Our evidence rules give trial courts both the authority
and the responsibility to determine the admissibility of such
evidence without being limited to the general acceptance standard.
They preclude this inquiry from focusing exclusively on general
acceptance or any other single factor. Our evidence rules
contemplate a broader inquiry, allowing a proponent to establish
admissibility even if general acceptance is absent, and allowing an
opponent to challenge admissibility even if general acceptance is
present.
Frye is potentially capricious because it excludes
scientifically reliable evidence which is not yet generally
accepted, and admits scientifically unreliable evidence which
although generally accepted, cannot meet rigorous scientific
scrutiny. Because the Frye test potentially excludes evidence that
should be admitted under our rules, and also potentially admits
evidence that should be excluded under our rules, we conclude that
it is both unduly restrictive and unduly permissive. Just as the
Supreme Court concluded in Daubert that the Frye test is
inconsistent with the federal evidence rules, 41 we conclude that it
is inconsistent with the Alaska Rules of Evidence.
We reach this conclusion despite our prior approval of
the Frye standard. "[T]he judicial doctrine of stare decisis
accords the prior holdings of the highest courts of this State
precedential value while still permitting the reconsideration of
legal issues when conditions warrant."42
We have stated that we will overrule a prior decision
only when we are "clearly convinced that the rule was originally
erroneous or is no longer sound because of changed conditions, and
that more good than harm would result from a departure from
precedent."43 It is our view that these requirements are met with
respect to our decision in Contreras.
First, we are clearly convinced that we erroneously
decided Contreras for the following reasons. Contreras assumes
that the Federal Rules of Evidence did not change the Frye test.
Daubert has subsequently shown that assumption to be incorrect.
Further, our decision in Contreras ignored Alaska Evidence Rule
703, which employs a "reasonably relied upon by experts"standard
in contrast to Frye's "general acceptance"standard. This
oversight in Contreras is all the more surprising because the
commentary to the Rule 703 makes clear an intent to promulgate a
rule different from Frye: "The rule attempts to chart a path
between the rigid approach of [Frye] and the minimal relevance
approach of Rule 401."
Second, we conclude that the "more good than harm"
requirement is also met. As noted above, Frye may exclude
scientifically reliable evidence while admitting unreliable
evidence. It is desirable to replace Frye with a rule not
suffering from these deficiencies. Any harm as may be done by
overruling Contreras is short term and limited. It concerns only
cases in which the Frye/Daubert controversy has been raised that
are pending in the trial courts or on direct review at the time of
this decision. 44 In those cases, if reliance on Frye is found to
be other than harmless error, a new trial may be required. But a
new trial may not be necessary, because on remand the trial court
may determine that the questioned evidence meets the standard set
out in this opinion.
The limitations of the general acceptance standard have
been extensively catalogued. 45 Assuming that some of the strictures
of Frye were ameliorated in some courts pre-Daubert, 46 we
nonetheless conclude that it is better to resolve admissibility
disputes by referring to our modern evidentiary foundation, the
Alaska Rules of Evidence, than by trying to salvage or remold a
"rigid"standard that is fundamentally inconsistent with our rules.
How should Alaska trial courts assess the reliability and
relevance of proffered scientific evidence? The factors identified
in Daubert provide a useful approach: (1) whether the proffered
scientific theory or technique can be (and has been) empirically
tested (i.e., whether the scientific method is falsifiable and
refutable); (2) whether the theory or technique has been subject to
peer review and publication; (3) whether the known or potential
error rate of the theory or technique is acceptable, and whether
the existence and maintenance of standards controls the technique's
operation; and (4) whether the theory or technique has attained
general acceptance. 47
Other factors may apply in a given case. After the
Supreme Court issued its decision in Daubert, the Ninth Circuit
suggested two ways to satisfy Daubert's requirement that the
testimony be "derived by the scientific method [or] . . . based on
scientifically valid principles."48 As described by Kesan, "either
(a) the expert's proffered testimony must grow out of prelitigation
research, or (b) the expert's research must be subjected to peer
review."49 Kesan, giving the example of "independent"research
funded by tobacco companies, appropriately notes the danger of a
hidden litigation motive. 50 Nonetheless, publication is at least
more likely to provoke scrutiny and response, and reveal
methodological deficiencies.
Alaska Evidence Rule 702 is similar to New Mexico's
equivalent rule. 51 In 1993 the New Mexico Supreme Court adopted the
Daubert standard in State v. Alberico, 861 P.2d 192, 203-04 (N.M.
1993). Other state supreme courts with similar evidence rules have
also adopted the Daubert standard. 52
But other states, whose evidence rules also mirror the
federal rules, have rejected Daubert and retained Frye. 53
California and New York courts have also retained a Frye-type
standard; they have no rule similar to Alaska Evidence Rule 702. 54
Those decisions do not convince us that we should retain Frye.
In invoking our evidence rules, adopting Daubert, and
limiting Frye, we reject arguments and dire predictions supporting
the status quo.
Burden on trial judges. We first reject concerns that
Daubert will make the trial courts' gatekeeping role unduly
burdensome. This concern is founded on a perception that Daubert
requires judges to determine the reliability of the expert's
scientific methods, whereas the general acceptance standard allows
courts to defer to the judgment of scientists. 55
The notion that scientists are better suited than judges
for assessing scientific reliability may appear initially
persuasive, given that trial judges are rarely trained in science
and given concerns that they are already overburdened. Closer
consideration reveals that the notion is misleading and irrelevant.
First, scientific reliability is not necessarily congruent with
judicial reliability. This is illustrated by Frye itself. The
"general acceptance"standard does not define scientific
reliability; it is simply a judicial construction. And for reasons
noted above, it is a flawed judicial construction. Second, the
rules of evidence must be applied by trial judges, subject to
review for abuse of discretion. It is for the trial court to
determine whether the expert is qualified to testify and the
proffered evidence is admissible. 56 Determining reliability for
judicial purposes is unavoidably the responsibility of trial
courts, and should not be delegated to an expert's peers.
The burden, especially when considering novel scientific
evidence, may well be substantial. We nonetheless conclude that it
is one the trial courts (and appellate courts on review) must bear.
But we are not convinced that the burden will be as onerous as
some predict. We suspect that most difficult disputes will be
limited to evidence that is rationally disputable; we expect that
relatively little effort will be required to determine the
admissibility of most scientific evidence, because most will be
either patently reliable or unreliable.
As for the difficult disputes, the courts may reduce the
judicial burden and increase the accuracy of their admissibility
decisions by selecting independent expert witnesses. 57 They can
also appoint expert advisors. 58 Such advisors can provide valuable
guidance to courts determining reliability of proffered scientific
evidence. Commentators have identified various concerns about
using technical advisors. 59 Their suggestions -- how to select an
advisor, how to define the expert's duties, and how the expert
should act -- are worthy of consideration. 60
"Junk science." Several amici argue that juror
susceptibility to the persuasive power of scientific evidence
mandates a conservative reliability standard, such as Frye's
general acceptance test, to prevent admission of "junk science."61
In State v. Carter, 524 N.W.2d 763, 777-78 (Neb. 1994),
the Nebraska Supreme Court stated that the Frye rule was intended
to ensure the reliability of scientific evidence because: (1) lay
jurors can be overly impressed by science; (2) lay jurors lack the
capacity to evaluate scientific evidence critically; and (3) lay
jurors are likely to give "junk science"more weight than it
deserves. The court, citing New Mexico and Arizona decisions,
recognized "the complex nature of DNA evidence and the need to
protect against unproven and potentially erroneous and misleading
evidence,"and declined to adopt the Daubert standard for the
admissibility of DNA evidence. 62
The Frye test is arguably a safeguard against evidence
based upon specious scientific techniques, especially in criminal
trials where the defendant's right to a fair trial is crucial. 63
Nevertheless, the Frye standard has also been criticized for being
easily manipulated by courts when deciding whether or not to admit
certain evidence. "The lack of a definitional framework for
'field' and 'general acceptance' allowed courts seeking to admit
scientific evidence to confine the 'field' of pertinent inquiry
narrowly to a specialty within a broader scientific discipline in
order to demonstrate 'general acceptance.'"64 For example, in
Commonwealth v. Lykus, 327 N.E.2d 671, 675-78 (Mass. 1975), the
record contained evidence of a dispute about the acceptance of
voice spectrography in the scientific community; the court resolved
the dispute by limiting the applicable scientific community to
"those who would be expected to be familiar with its use."65
We are not convinced that "junk science"is more likely
to be admitted under Daubert than under Frye. Post-Daubert
reported decisions suggest that courts are acting with restraint,
and are giving rigorous consideration to the reliability of
scientific evidence. 66 Furthermore, Frye also potentially permits
admission of unreliable scientific evidence, because a methodology
that has been generally accepted might nonetheless have been
discredited during a Daubert inquiry.
We also suspect that junk science poses less risk to fair
trials than a more common aspect of admitting scientific evidence.
Even when they apply identical methodologies that satisfy both
Daubert and Frye, dueling experts can reach conflicting,
irreconcilable conclusions. Indeed, Daubert has been criticized
because it assumes that reliability should be determined by
examining the methodology, without regard to the truth of the
scientific conclusions. 67 Even when they apply the same
methodology, experts for opposing parties may reach different
results. Likewise, well-qualified experts may make rational
conflicting choices in deciding which reliable methodology to
apply. Juries, relatively ill-trained to resolve such conflicts on
subtle or complex scientific grounds, may resort to credibility
assessments which are unduly simplistic. Opinions of a practiced
forensic expert may prevail over those of a true academic who makes
a less impressive appearance on the witness stand. Assuming proper
execution of the judicial gatekeeping function, we think the risk
to fair trials posed by junk science is lower than the risk posed
by jurors' difficulty in critically assessing scientific evidence
that is based on reliable methodologies.
Relitigation of evidence admissible under Frye. Butler's
amicus brief asserts that since the Daubert standard applies to all
scientific knowledge, and is not limited to "novel"scientific
evidence, evidence deemed admissible under Frye may now be found
inadmissible under Daubert. Butler argues that this will lead to
increased litigation over the admissibility of scientific evidence,
and to a case-by-case determination of admissibility, with the
possibility of inconsistent or unpredictable decisions. Butler
suggests that Daubert may affect forensic sciences, such as
fingerprint, handwriting, and hair comparison analyses, that are
now admissible under Frye. While Butler frames this as a negative
result of adopting Daubert, the New Mexico Supreme Court noted:
Contrary to the assertion . . . that the
Frye test places the responsibility of
determining scientific validity upon
scientists, in practice too many courts
reference reported case law to determine what
is generally accepted in the scientific
community. It is improper to look for
scientific acceptance only from reported case
law because that amounts to finding a
consensus in the legal community based on
scientific evidence that is sometimes many
years old.[68]
Further, as the State notes, when an area of expertise is
well-known and has been fully considered by the courts, a trial
court may take judicial notice of its admissibility. The Supreme
Court advocated this approach. 69 Moreover, general acceptance
remains a factor under Daubert. 70 It also seems unlikely that
methodologies that were admitted under Frye and that remain
generally accepted in the appropriate community will be excluded,
absent affirmative evidence of unreliability.
4. The Admissibility of Voice Spectrograph Evidence under
Daubert
On remand, the trial court found that Cain's testimony
regarding the applied forensic technique of using spectrography to
analyze and identify voices was admissible under both Frye and
Daubert. Coon and the APDA contend that the trial court erred in
finding Cain's testimony regarding voice spectrography admissible
under either test. Given our adoption of Daubert in Part III.C,
there is no reason to review admissibility under Frye.
1. Standard of review
We review a trial court's ruling on the admissibility of
expert testimony for abuse of discretion. 71
Although the parties agree on this standard of review,
two amici curiae, Butler and the APDA, argue that we should review
de novo a trial court's decision to admit or exclude scientific
evidence. So arguing, APDA relies on a passage from Pulakis, where
we stated that "[o]n the basis of our study of the judicial
authority and academic literature in this area, we conclude that
the results of polygraph examinations should not be received in
evidence over objection."72
In addition, both Butler and APDA cite Contreras, in
which the court of appeals stated that it was "free to exercise
[its] independent judgment"when reviewing the trial court's
decision to admit evidence recovered from an eyewitness during
hypnosis because the findings regarding memory and the effects of
interrogative techniques on eyewitness testimony and hypnosis in
general are legislative facts, rather than adjudicative facts. 73
Kesan and the dissenting opinion propose adopting a
hybrid standard of review, reviewing de novo a trial court's
findings on the scientific knowledge prong of the Daubert test and
retaining an abuse of discretion standard for the second prong
relating to relevance or "fit"of the facts of the particular case
to the scientific technique employed. 74 They assert that
implementing de novo review of scientific validity allows for more
uniform adjudication at the trial and appellate levels, and for
development of distinct validation criteria for expert testimony
relating to different scientific or technical disciplines. 75
We see no present reason to adopt a new or hybrid
standard for reviewing rulings on the admissibility of scientific
evidence. Abuse of discretion is the standard applicable to other
evidentiary rulings. 76 Such rulings are best left to the discretion
of the trial court. A determination of reliability under Daubert
is no different.
The dissent reaches a different conclusion because it
begins with the premise that the scientific validity of a technique
is a legal issue which does not turn on case-sensitive facts. 77
This premise does not adequately take account of the reality of the
judicial process and the variable state of science. The New Mexico
Supreme Court rejected the same argument advanced here by the
dissent. In rejecting the de novo standard of review that court
noted:
This reasoning assumes, however, that the
record on appeal contains all of the relevant,
most recent data concerning the scientific
method, and that assumes too much. It also
assumes that there is always a reservoir of
scientific literature that an appellate court
might independently reference in a de novo
review. The abstract validity of a scientific
technique should not vary from court to court,
but how the proof of such validity is
communicated will often vary from presentation
to presentation. Some experts are more
skillful and more well-informed than others
just as some lawyers are more skillful and
more well-prepared than others. In addition,
the state of science is not constant; it
progresses daily. For example, what might
have been true about [post traumatic stress
disorder] in the early 1980s when it was first
addressed in published opinions might not have
been true in 1992. . . .[78]
We recognize that different trial judges, in exercising
their discretion, may reach different conclusions about scientific
reliability. But we disagree with the dissent's suggestion that
the inconsistency will be of such magnitude as to "compromise the
integrity of the judiciary in the eyes of the public."79 Despite
such predictions in the academic literature, the majority of the
federal circuits have chosen to apply the abuse of discretion
standard when reviewing district court decisions under Daubert. 80
In addition, the Supreme Court recently approved the abuse of
discretion standard in General Electric, Co. v. Joiner, __ U.S. __,
118 S. Ct. 512, 517 (1997).
The principal reason for adopting the Daubert standard is
to give the courts greater flexibility in determining the
admissibility of expert testimony, so as to keep pace with science
as it evolves. We think the abuse of discretion standard of review
best comports with these aims, and we choose to apply it here.
2. Admissibility of Cain's voice spectrographic
analysis under Daubert
In making its findings on remand, the trial court
discussed each factor the Supreme Court articulated in Daubert.
The trial court found that the technique of spectrographic voice
identification had been empirically tested "on numerous occasions
by many scientists during approximately the past twenty years."
The court determined that voice spectrography had been subjected to
peer review and publication, but noted that the technique's
reliability was debated in the scientific literature. It also
found that when properly performed under the "stringent standards"
of the International Association for Identification by a qualified,
trained scientist or technician, voice spectrography has a known
error rate of less than one percent. The trial court found that
because voice spectrography has been subjected to empirical
testing, it is both falsifiable and refutable, and that testing has
not refuted the technique or shown that it is falsified. The court
determined that when voice spectrography is properly performed by
a qualified person, it has attained widespread acceptance within
the relevant scientific community -- amongst forensic scientists
and scientists in acoustics and speech-related fields with
experience using the technique.
The trial court also found that the reasoning and
methodology underlying Cain's testimony were scientifically valid,
and that Cain had properly performed the voice spectrographic
analysis in this case. The trial court stated that Cain's
testimony was relevant in that it assisted the jury in determining
a key issue at trial, namely the identification of the person who
left the threatening messages on Deborah Rudolph's answering
machine. The trial court therefore concluded that Cain's testimony
was sufficiently relevant and reliable to be admitted under
Daubert.
The trial court made these findings on remand after
reviewing the record, including Cain's testimony.
Because this is our first review of a trial court's
application of Daubert, we discuss Cain's evidence at some length.
Cain testified at the 1992 hearing about his qualifications as a
voice spectrograph expert. He has a bachelor of science degree in
engineering and two master's degrees in forensic science; he had
completed two years of work toward a doctoral degree in
criminology. He had continued his post-graduate education by
attending seminars at the state and national levels dealing with
tape examination and other aspects of forensic evidence analysis.
He had given talks and seminars throughout the United States on
voice identification and tape analysis and had published "a number
of articles"concerning the legal aspects and results of research
studies on the reliability of voice spectrograph analysis.
He owned and operated Applied Forensic Technologies
International, Inc., a forensic laboratory that analyzes physical
evidence. Before opening his private laboratory, Cain worked for
ten years as a document and voice print examiner for the Secret
Service in its Washington, D.C., crime laboratory, and for three
years for the Internal Revenue Service as a supervisor at its
Illinois Crime Lab, where he started a voice identification
program.
He was certified by the International Association for
Identification (IAI) as a voice identification specialist and he
served on the certification board of that organization. Based on
this testimony offered outside the jury's presence, the trial court
found that Cain was qualified as an expert under Alaska Evidence
Rule 702 in the field of "applied forensic techniques of voice
prints."
Cain then explained that in performing a voice analysis,
he conducts both an aural and a spectrographic analysis of a voice.
Cain discussed factors which might affect the results of voice
analysis, the potential error rate of voice analysis, and the
reliability of the technique. He described the standards adopted
by the IAI in 1992, and stated that he adhered to these standards,
and that he sends his work to another examiner for an independent
review of the accuracy of his findings. Cain estimated that
approximately thirty-one to thirty-four states have accepted voice
spectrograms, commonly known as voiceprints, as a positive means of
forensic identification. Cain testified that voice spectrographic
analysis has been subjected to empirical testing from the time of
its inception over twenty years prior. Cain testified about
various scientific studies that concluded that voice spectrographic
analysis was a valid and reliable forensic identification
technique.
The scientific literature submitted to us by amicus APDA
would also support a finding that spectrographic analysis has been
empirically tested. We conclude that the trial court did not err
in finding on remand that this technique has been subjected to
empirical testing.
Cain conceded that several studies question the validity
and reliability of the technique. Although many of the studies
questioned the reliability of the technique, the trial court did
not err in finding on remand that the technique had been subjected
to peer review and publication, since a general consensus is not a
mandatory requirement under Daubert.
Cain also testified that research studies have calculated
the known error rate for voice spectrographic analysis to be less
than one percent when the technique is performed properly by a
scientist skilled in the technique. 81 Cain stated that in order to
make the sample as accurate as possible by eliminating "intraspeak
variation"(the internal factors that affect a person's voice, such
as the time of day, the amount a person has eaten, or the person's
mood), the scientist conducting the analysis should take numerous
exemplars and attempt to duplicate the conditions of the original
recording. The trial court did not err in finding on remand that
the known error rate for voice spectrographic analysis performed
properly by a skilled scientist in the field was sufficiently low
to make this evidence reliable.
General acceptance remains a factor under Daubert. The
trial court on remand found that "[t]he technique of voice
identification using spectrography when properly performed by a
qualified person has attained widespread acceptance within a
relevant scientific community -- forensic scientists and scientists
in acoustics and speech related fields who had experience using the
technique."
In determining the admissibility of voice spectrograph
evidence under the general acceptance test, several courts have
defined the composition of the "relevant scientific community." In
State v. Gortarez, 686 P.2d 1224, 1233 (Ariz. 1984), the Arizona
Supreme Court defined the relevant scientific community as
"disinterested and impartial experts in many fields, possibly
including acoustical engineering, acoustics, communications
electronics, linguistics, phonetics, physics, and speech
communications." The Gortarez court noted that this list was
merely suggestive and not all-inclusive. 82
Neither party questions the trial court's determination
of the relevant scientific community in this case. Based upon the
findings of other courts as to the relevant scientific community
for the technique of forensic voice identification using
spectrography, we conclude that the trial court did not abuse its
discretion in determining the relevant scientific community.
Coon and the APDA argue that voice spectrograph analysis
is not generally accepted within the relevant scientific community,
and has been ruled inadmissible by numerous courts applying Frye.
The APDA has submitted several articles questioning the
reliability of voice spectrograph analysis when used as anything
other than an investigative tool. The APDA also included a copy of
an Alaska superior court decision in State v. Gomez, No. 3AN-S88-
5190 Cr. (March 23, 1990), in which Superior Court Judge Joan M.
Katz found that voice spectrographic identification evidence was
inadmissible because it was not generally accepted within the
relevant scientific community.
In determining whether evidence is generally accepted
within the scientific community, courts have generally looked to
three sources for guidance: (a) judicial opinions; (b) scientific
literature; and (c) expert testimony presented at an evidentiary
hearing. 83
Under Frye many courts have determined that voice
spectrographic evidence is not admissible. 84 But other courts have
allowed voice spectrographic evidence under standards other than
Frye. 85 And several courts purporting to apply Frye have also
allowed such evidence. 86 Overall, it is inconclusive whether there
is a judicial consensus that voice spectrographic evidence is
generally accepted within the relevant scientific community.
The scientific literature cited by the APDA permits a
conclusion that there is significant disagreement among experts in
the field of voice spectrographic analysis regarding the
reliability of the technique. As the State notes, no scientific
literature was submitted to the trial court for review, but Cain
testified about several articles and studies addressing voice
spectrographic analysis, and conceded that the reliability of the
technique was disputed among members of the relevant scientific
community.
Cain cited, among others, a study conducted in 1986 by
Bruce E. Koenig of the Federal Bureau of Investigation. Koenig
there noted that in a survey of 2,000 voice identification
comparisons made by FBI examiners under actual forensic conditions,
meaningful decisions were made only 34.8% of the time, with a known
error rate of 0.31% for false identifications and 0.53% for false
eliminations, with an overall error rate of 0.43%. 87 In a 1993
article, Koenig noted that problems still persist in the
spectrographic voice identification field, such as "separate sets
of certified examiners making high confidence decisions for both
identification and elimination in the same case."88 Koenig also
stated that even with the establishment of new standards by the IAI
in 1992, the use of spectrographic voice technique is on the
decline, and "[t]he most important legal difference is the FBI's
policy not to provide testimony on spectrographic comparisons due
to the inconclusive nature of the examination and the unknown error
rate under specific investigative conditions."89
Although it is not clear that voice spectrographic
analysis has attained general acceptance within the relevant
scientific community, we do not find that the trial court clearly
erred in making its general acceptance finding, or abused its
discretion in ruling that the evidence satisfied Daubert.
Consequently, we conclude that the trial court did not err in
finding the voice spectrographic evidence admissible under Daubert.
It therefore did not abuse its discretion in admitting this
evidence at Coon's trial.
4. CONCLUSION
For these reasons, we overrule Contreras, and hold that
the Alaska Rules of Evidence supersede the Frye test.
We adopt the Daubert standard for determining the
admissibility of scientific evidence. We hold that the voice
spectrograph analysis evidence was admissible under Daubert and the
Alaska Rules of Evidence in this case. We therefore AFFIRM Coon's
judgment and conviction.
Footnotes
1 See Coon v. State, Mem. Op. & J. No. 3070 (Alaska App.,
January 25, 1995).
2 M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995); see also
Hernandez-Robaina v. State, 849 P.2d 783, 785 n.2 (Alaska 1993);
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
3 See Jay P. Kesan, An Autopsy of Scientific Evidence in a
Post-Daubert World, 84 Geo. L.J. 1985, 1990 (1996) [hereinafter
Kesan, Autopsy]; Joseph R. Meaney, From Frye to Daubert: Is a
Pattern Unfolding?, 35 Jurimetrics J. 191, 191, 194-99 (Winter
1995) [hereinafter Meaney, Pattern Unfolding?].
4 See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923).
5 Id. (emphasis added).
6 Id.
7 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993).
8 See id. at 582.
9 See id. at 582-83.
10 See id. at 583-84.
11 See id. at 584, 598.
12 Daubert, 509 U.S. at 588 (quoting Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 169 (1988)).
13 Id. at 589.
14 Id. at 592 (footnotes omitted).
15 Id. at 592-93.
16 Id. at 593-94.
17 Daubert, 509 U.S. at 594-95.
18 See generally John M. Conley & David W. Peterson, Essay,
The Science of Gatekeeping: The Federal Judicial Center's New
Reference Manual on Scientific Evidence, 74 N.C. L. Rev. 1183, 1186
(1996) [hereinafter Conley & Peterson, Science of Gatekeeping].
19 See Contreras v. State, 718 P.2d 129, 136 (Alaska 1986).
20 Id.
21 Id.
22 See id. at 134, 136.
23 See, e.g., Harmon v. State, 908 P.2d 434, 439 & n.5
(Alaska App. 1995); Williams v. State, 884 P.2d 167, 172 (Alaska
App. 1994); McGlauflin v. State, 857 P.2d 366, 371 & n.3 (Alaska
App. 1993).
24 Coon v. State, Mem. Op. & J. No. 3070 at 7 (Alaska App.,
January 25, 1995).
25 See, e.g., Conley & Peterson, Science of Gatekeeping,
supra note 18; Paul C. Giannelli, The Admissibility of Novel
Scientific Evidence: Frye v. United States, A Half-Century Later,
80 Colum. L. Rev. 1197, 1207 (1980) [hereinafter Giannelli, Novel
Scientific Evidence]; Kesan, Autopsy, supra note 3; Meaney, Pattern
Unfolding?, supra note 3; Adina Schwartz, A "Dogma of Empiricism"
Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the
Need to Resurrect the Philosophical Insight of Frye v. United
States, 10 Harv. J.L. & Tech. 149, 156 (Winter 1997) [hereinafter
Schwartz, Dogma of Empiricism]; Note, Improving Judicial
Gatekeeping: Technical Advisors and Scientific Evidence, 110 Harv.
L. Rev. 941, 953 (Feb. 1997) [hereinafter Improving Judicial
Gatekeeping].
26 See U.S. Const. art. I, §§ 9 and 10; Alaska Const. art.
I, § 15.
27 See Frank v. Magnum, 237 U.S. 309, 344 (1915); Calder v.
Bull, 3 U.S. (3 Dall.) 386 (1798); and Laurence H. Tribe, American
Constitutional Law § 10-2, at 632 (2d ed. 1988).
28 See State v. Creekpaum, 753 P.2d 1139, 1143 (Alaska
1988).
29 See, e.g., Marks v. United States, 430 U.S. 188, 191-97
(1977); Bouie v. Columbia, 378 U.S. 347, 353-54 (1964); and Tribe,
supra note 27.
30 See also Hopt v. Utah, 110 U.S. 574, 588-90 (1884)
(upholding retroactive application of statute making felons
competent to testify); Allen v. State, 945 P.2d 1233, 1236 (Alaska
App. 1997) (holding that because it does not alter the definition
of crimes or increase the punishment for criminal acts, the
amendment of Evidence Rule 404(a)(2) may be applied
"retrospectively"without violating the prohibition on ex post
facto laws).
31 See Landgraf v. USI Film Products, 511 U.S. 244, 266 n.19
(1994); Collins v. Youngblood, 497 U.S. 37, 42 (1990) ("It is
settled . . . that any statute which punishes as a crime an act
previously committed, which was innocent when done; which makes
more burdensome the punishment for a crime, after its commission;
or which deprives one charged with crime of any defense available
according to law at the time when the act was committed, is
prohibited as ex post facto.").
32 See Adamson v. University of Alaska, 819 P.2d 886, 889
n.3 (Alaska 1991) (stating that "where a point is given only a
cursory statement in the argument portion of a brief, the point
will not be considered on appeal").
33 See Alaska Supreme Court Order No. 364 (August 1, 1979).
34 See Pulakis v. State, 476 P.2d 474, 478 (Alaska 1970).
35 Alaska Rule of Evidence 702(a) provides:
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.
36 Alaska Rule of Evidence 703 provides:
The facts or 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. Facts or
data need not be admissible in evidence, but
must be of a type reasonably relied upon by
experts in the particular field in forming
opinions or inferences upon the subject.
37 See also State v. Alberico, 861 P.2d 192, 202-04 (N.M.
1993).
38 Alaska R. Evid. 703, commentary.
39 Id.
40 509 U.S. at 589.
41 See id.
42 State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 953
(Alaska 1995); see also Pratt & Whitney Canada, Inc. v. Sheehan,
852 P.2d 1173, 1175-76 (Alaska 1993).
43 State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996).
44 See Yerrington v. Anchorage, 675 P.2d 649 (Alaska App.
1983).
45 See Kesan, Autopsy, supra note 3, at 1191-92; Giannelli,
Novel Scientific Evidence, supra note 25, at 1208-31; see also
Daubert, 509 U.S. at 586 n.4 (listing articles debating the merits
of Frye).
46 For example, in California one must satisfy the Frye/
Kelly test to introduce expert testimony by showing: (1) that the
technique or method is sufficiently established to have gained
general acceptance in its field; (2) that the expert is properly
qualified; and (3) that correct scientific procedures have been
used in the particular case. See People v. Leahy, 882 P.2d 321,
324-25 (Cal. 1994) (referring to test announced in People v. Kelly,
549 P.2d 1240 (Cal. 1976)).
Also, even before the Court announced Daubert, some
federal appellate courts had rejected the Frye test and adopted
multifactor reliability tests. See, e.g., United States v.
Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985); United States v.
Williams, 583 F.2d 1194, 1198-99 (2d Cir. 1978).
47 See 509 U.S. at 593-94.
48 Daubert v. Merrell Dow Pharm., Inc., (Daubert IV), 43
F.3d 1311, 1316 (9th Cir. 1995).
49 Kesan, Autopsy, supra note 3, at 2003 (citing Daubert IV,
43 F.3d at 1318).
50 See id. at 2002.
51 See Alaska R. Evid. 702, commentary.
52 See Cecil v. Commonwealth, 888 S.W.2d 669, 674-75 (Ky.
1994); State v. Foret, 628 So. 2d 1116, 1121, 1123 (La. 1993);
Commonwealth v. Lanigan, 641 N.E.2d 1342, 1348-49 (Mass. 1994);
State v. Brooks, 643 A.2d 226, 229 (Vt. 1993); Mayhorn v. Logan
Med. Found., 454 S.E.2d 87, 90-93 (W. Va. 1994).
53 See Flanagan v. State, 625 So. 2d 827, 828-29 & n.2 (Fla.
1993); State v. Carter, 524 N.W.2d 763, 778-79 (Neb. 1994),
overruled on other grounds by State v. Freeman, 571 N.W.2d 276, 293
(Neb. 1997); State v. Riker, 869 P.2d 43, 47-48 & n.1 (Wash. 1994).
54 See People v. Leahy, 882 P.2d 321, 325 (Cal. 1994);
People v. Wesley, 633 N.E.2d 451, 454 & n.2 (N.Y. 1994).
55 See Kesan, Autopsy, supra note 3, at 2000; Daubert IV, 43
F.3d at 1316 ("As we read the Supreme Court's teaching in Daubert,
. . . though we are largely untrained in science and certainly no
match for any of the witnesses whose testimony we are reviewing, it
is our responsibility to determine whether those experts' proposed
testimony amounts to 'scientific knowledge,' constitutes 'good
science,' and was 'derived by the scientific method.'").
56 See Alaska R. Evid. 104(a).
57 Alaska Evidence Rule 706 provides in pertinent part:
(a) Appointment. The court may on its own
motion or on the motion of any party enter an
order to show cause why expert witnesses
should not be appointed, and may request the
parties to submit nominations. The court may
appoint expert witnesses. An expert witness
shall not be appointed by the court unless the
witness consents to act. A witness so
appointed shall be informed of the witness'
duties by the court in writing, a copy of
which shall be filed with the clerk, or at a
conference in which the parties shall have
opportunity to participate. A witness so
appointed shall advise the parties of the
witness' findings, if any; the witness'
deposition may be taken by any party; and the
witness may be called to testify by the court
or any party. If the court determines that
the interests of justice so require, the party
calling an expert appointed under this rule
may cross-examine the witness.
See also Daubert, 509 U.S. at 595.
58 Compare Daubert, 509 U.S. at 595 (possibly implying that
Evidence Rule 706 also governs appointment of non-witness
advisors), with In re Peterson, 253 U.S. 300, 312 (1920)
(recognizing courts' "inherent power"to appoint persons not
connected with the court to aid judges in the performance of
specific judicial duties).
59 See Note, Improving Judicial Gatekeeping, supra note 25.
60 See id. at 954-58.
61 See generally People v. Kelly, 549 P.2d 1240, 1245 (Cal.
1976) ("Lay jurors tend to give considerable weight to 'scientific'
evidence when presented by 'experts' with impressive credentials.
We have acknowledged the existence of a '. . . misleading aura of
certainty which often envelops a new scientific process, obscuring
its currently experimental nature.'") (citations omitted); see
also Contreras v. State, 718 P.2d 129, 135 (Alaska 1986).
62 State v. Carter, 524 N.W.2d 763, 779 (Neb. 1994).
63 See Giannelli, Novel Scientific Evidence, supra note 25,
at 1207.
64 Kesan, Autopsy, supra note 3, at 1991.
65 See also Alberico, 861 P.2d at 201 (noting that the Frye
test is easily manipulated because it is so vague).
66 See, e.g., Duffee v. Murray Ohio Mfg. Co., 879 F. Supp.
1078, 1086-87 (D. Kan. 1995) (excluding expert testimony because it
was devoid of a meaningful and factual basis for weighing the
factors involved in the design of a product in defective design
case), aff'd, 91 F.3d 1410 (10th Cir. 1996); Richardson v. United
States, 835 F. Supp. 1236, 1239-41 & n.1 (E.D. Wash. 1993)
(excluding testimony of automobile accident reconstructionists
because their computations lacked fixed factors based on on-the-
scene measurements and their conclusions were opinion-driven).
67 See Schwartz, Dogma of Empiricism supra note 25, at 156-
57.
68 Alberico, 861 P.2d at 203.
69 See Daubert, 509 U.S. at 592 n.11; see also Giannelli,
Novel Scientific Evidence, supra note 25, at 1202.
70 See 509 U.S. at 594.
71 See Sweet v. Sisters of Providence in Wash., 895 P.2d
484, 494 n.10 (Alaska 1995); see also Hawley v. State, 614 P.2d
1349, 1361 (Alaska 1980) ("The admissibility of evidence is largely
within the trial court's discretion and its rulings will not be
overturned on appeal in the absence of an abuse of discretion.").
72 476 P.2d at 479.
73 674 P.2d at 799 & n.11. See also State v. Copeland, 922
P.2d 1304, 1314-15 (Wash. 1996) (holding that review of
admissibility under the Frye test is de novo and involves a mixed
question of law and fact). But see State v. Alberico, 861 P.2d
192, 205-06 (N.M. 1993) (noting that although the abuse of
discretion standard "lends itself to the criticism that it will
lead to inconsistent results in lower courts throughout the state,"
abuse of discretion is the proper standard when reviewing a trial
court's decision to admit scientific evidence under Daubert because
appellate courts may not have the same access to the most recent
data concerning the scientific method).
74 See Kesan, Autopsy, supra note 3, at 2038-39; Dissent at
42-43.
75 See Kesan, Autopsy, supra note 3, at 2038-39; Dissent at
42.
76 See Harris v. Keys, 948 P.2d 460, 466 (Alaska 1997)
("This court reviews the superior court's decisions on the
admissibility of evidence for an abuse of discretion.") (citation
omitted); Sever v. Alaska Pulp Corp., 931 P.2d 354, 359 n.5 (Alaska
1996) ("A trial court's evidentiary rulings are reviewed under the
abuse of discretion standard.") (citation omitted).
77 See Dissent at 42.
78 Alberico, 861 P.2d at 169-70.
79 Dissent at 44.
80 See generally, United States v. Kayne, 90 F.3d 7, 11 (1st
Cir. 1996); Raskin v. Wyatt, Co., 125 F.3d 55, 65-66 (2d Cir.
1997); Benedi v. McNeil P.P.C., 66 F.3d 1378, 1384 (4th Cir. 1995);
Pedraza v. Jones, 71 F.3d 194, 197 (5th Cir. 1995); American &
Foreign Ins. Co. v. General Elec. Co., 45 F.3d 135, 137 (6th Cir.
1995); Hose v. Chicago N.W. Transp. Co., 70 F.3d 968, 972 (8th Cir.
1995); United States v. Chischilly, 30 F.3d 1144, 1152 (9th Cir.
1994); Duffee, Thornton v. Murray Ohio Mfg. Co., 91 F.3d 1410, 1411
(10th Cir.); Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549,
567 (D.C. Cir. 1993).
81 See also Bruce E. Koenig, Spectrographic Voice
Identification, 13 FBI Crime Lab. Digest 105, 115 (1986).
82 See State v. Gortarez, 686 P.2d 1224, 1233 n.4 (Ariz.
1984). See also United States v. Smith, 869 F.2d 348, 352 (7th
Cir. 1989) (defining the relevant scientific community as including
"not only those who utilize spectrographic voice identification
techniques, but linguists, psychologists and engineers as well"
(footnote omitted)); Cornett v. State, 450 N.E.2d 498, 503 (Ind.
1983) (defining the relevant scientific community as "linguists,
psychologists, and engineers, in addition to the people who use
voice spectrography for identification purposes").
83 See, e.g., Windemere, Inc. v. International Ins. Co., 522
A.2d 405, 408 (N.J. 1987).
84 See, e.g., Gortarez, 686 P.2d at 1236; People v. Kelly,
549 P.2d 1240, 1251 (Cal. 1976); Cornett, 450 N.E.2d at 503; People
v. Tobey, 257 N.W.2d 537, 538-40 (Mich. 1977); Windemere, 522 A.2d
at 408-12.
85 See, e.g., United States v. Williams, 583 F.2d 1194,
1198-1201 (2d Cir. 1978); United States v. Baller, 519 F.2d 463,
465-67 (4th Cir. 1975); United States v. Franks, 511 F.2d 25, 32-34
(6th Cir. 1975).
86 See, e.g., United States v. Smith, 869 F.2d 348, 353 (7th
Cir. 1989); United States v. Maivia, 728 F. Supp. 1471, 1473-74 (D.
Haw. 1990).
87 See Bruce E. Koenig, Spectrographic Voice Identification,
13 FBI Crime Lab. Digest 105, 115 (1986).
88 Bruce E. Koenig, Selected Topics in Forensic Voice
Identification, 20 FBI Crime Lab. Digest 78, 80 (1993).
89 Id. at 80, 81.
FABE, Justice, concurring in part, and dissenting in part.
I agree with the court's decision to adopt the test for
admissibility of scientific evidence articulated in Daubert v.
Merrell Dow Pharmaceuticals, Inc.1 as the rule in Alaska. As the
court points out, scientific evidence must be both reliable and
relevant to be admissible under Daubert. But I disagree with the
court's decision to apply an abuse of discretion standard of review
to rulings about scientific reliability. The determination of
whether a general scientific proposition or process is reliable
should not vary from case to case or from judge to judge. I would
adopt a hybrid standard that reviews the reliability of scientific
evidence de novo but permits the trial court greater discretion in
deciding the relevance of that evidence to the particular facts of
a case.
The court adopts Daubert's two-pronged approach to
answering the question of whether scientific evidence is both
reliable and relevant. The trial judge must determine "whether the
reasoning or methodology underlying the testimony is scientifically
valid and . . . whether that reasoning or methodology properly can
be applied to the facts in issue."2 Thus, the court recognizes
that the question of whether a certain technique is scientifically
valid, and thus evidentiarily reliable,3 is distinct from the
question of whether the technique would help the trier of fact in
a given case. For example, even if a court decides that a
scientific technique such as polygraph testing is valid, the
technique might not be relevant to the disputed issues in the case.
Yet the court today adopts an abuse of discretion
standard for reviewing rulings as to both the validity of
scientific evidence and the relevance of such evidence to the facts
of a given case. Although I agree that abuse of discretion is an
appropriate standard for reviewing trial courts' decisions
regarding the relevance of scientific evidence to particular cases,
such a standard is inappropriate as applied to rulings on the
validity of general scientific principles, techniques, or theories.
Because Alaska courts should be consistent in their rulings with
regard to the validity of such techniques, and because the question
of a technique's scientific validity is a legal issue that normally
does not depend on case-sensitive factual determinations, I
advocate a hybrid standard under which we would review de novo any
threshold rulings on scientific validity but would review for abuse
of discretion case-specific rulings on relevance and testing
performance.4
Application of an abuse of discretion standard of review
to the validity of scientific techniques will most likely lead to
inconsistent treatment of similarly situated claims.5 We should
strive to avoid such inconsistency for the sake of both litigants
and the courts. The existence of conflicting superior court
rulings on the admissibility of a certain scientific theory or
technique will not only hinder efforts to provide uniformity under
the Alaska Rules of Evidence but will also decrease litigants'
ability to predict future rulings and to prepare efficiently and
conscientiously for future litigation involving expert scientific
testimony.6 Moreover, one commentator has suggested that such
inconsistency among trial courts may compromise the integrity of
the judiciary in the eyes of the public:
This nonuniformity, however, must not be
allowed to fester and must be reconciled at
the appellate level. Otherwise, inconsistent
jury verdicts, widely disparate compensation
for similar injuries, and erroneous criminal
verdicts will continue to erode public
confidence in our justice system.[7]
The desire for uniformity in decisions regarding the
admissibility of expert scientific testimony does not stem from a
concern about trial judges' competency to decide sophisticated
scientific questions. As the court acknowledges, two conscientious
judges with experience adjudicating disputes involving questions of
science can come to well-reasoned yet conflicting decisions
rejecting or accepting scientific information as evidence.8 The
court believes such inconsistencies will not be of a problematic
magnitude.9 I hope this optimistic view proves correct. But if it
does not, then parties preparing for litigation will not be able to
predict with confidence which techniques and theories Alaska courts
will view as "real science."10 The only way to ensure such
consistency is to allow appellate courts to review Daubert rulings
de novo with respect to the scientific validity of such techniques
and theories.11
Moreover, decisions about the validity of a general
scientific theory or principle normally do not turn on an
assessment of the credibility of witnesses or other decisions
within the exclusive province of the trial judge. The reliability
of scientific evidence does not change from one case to the next;12
a scientific method is either reliable or unreliable. Thus, the
validity of a scientific principle, technique, or process "is not
the traditional case-specific adjudicative fact to which an
appellate court defers to the trial court's findings."13 Instead,
the question of the validity of scientific information should be
reviewed de novo by an appellate court, for
"[t]he answer to the question about the
reliability of a scientific technique or
process does not vary according to the
circumstances of each case. It is therefore
inappropriate to view this threshold question
of reliability as a matter within each trial
judge's individual discretion."[14]
For example, a significant amount of research has been
conducted on the question of whether smoking causes lung cancer.
Litigants use this same research to prove their claims in a
variety of smoking-related suits. Because the question of whether
such studies are scientifically valid is not a case-specific
factual inquiry, we should review rulings on the studies'
admissibility de novo. In contrast, we should review a trial
judge's assessment of the competency of a particular expert witness
to render an opinion on the cause of a particular plaintiff's lung
cancer for abuse of discretion.15
Based on these concerns, at least two of the states that
have adopted Daubert as the standard for admissibility of
scientific evidence apply a de novo standard of review to questions
of scientific validity. In Taylor v. State,16 the Oklahoma Court
of Criminal Appeals adopted the Daubert standard and noted the need
for independent appellate review:
After . . . considering the permanent impact
of a trial judge's decision to admit novel
scientific evidence, we find we should subject
that decision to an independent, thorough
review and not simply ask whether an abuse of
discretion was committed.[17]
Similarly, in Craddock v. Watson,18 the West Virginia Supreme Court
adopted a hybrid standard of review for Daubert rulings:
The trial court's determination regarding
whether the scientific evidence is properly
the subject of scientific, technical, or other
specialized knowledge is a question of law
that we review de novo. On the other hand,
the relevancy requirement compels the trial
judge to determine . . . that the scientific
evidence "will assist the trier of fact to
understand the evidence or to determine a fact
in issue." W. Va. R. Evid. 702. Appellate
review of the trial court's rulings under the
relevancy requirement is under an abuse of
discretion standard.[19]
The amici curiae in this case, Rex Lamont Butler &
Associates and the Alaska Public Defender Agency, direct our
attention to two Alaska cases, Pulakis v. State20 and State v.
Contreras,21 in which Alaska appellate courts have exercised their
independent judgment in determining the admissibility of certain
scientific evidence such as polygraph examinations and hypnosis.22
The court's response to the implication of these cases -- that
questions of scientific validity should be subject to a more
stringent standard of review -- is that such a view "does not
adequately take account of the reality of the judicial process and
the variable state of science."23 The court cites the New Mexico
case State v. Alberico24 to argue that appellate courts might not
have access to "all of the relevant, most recent data concerning
the scientific method"at issue.25 But appellate courts making an
initial determination about the scientific validity of a theory or
technique should have access to as much data as the trial court.26
Additionally, because litigants in Alaska have an appeal as of
right, we will have ample opportunity to revisit our decisions on
scientific validity of a certain technique if new evidence or
literature surfaces on the subject. And if a decision as to the
reliability of scientific evidence were ever to hinge on an
assessment of a particular witness's credibility, we could review
such a decision for abuse of discretion under a hybrid standard.
In conclusion, this court should review rulings on the
reliability of a general type of scientific evidence or method
under a de novo standard and rulings on the evidence's relevance to
a particular case for abuse of discretion. Such a hybrid standard
of review would allow trial judges in Alaska considerable
flexibility in making factual findings and assessments of witness
competency and credibility while still preserving needed
consistency in judicial decisions regarding the admissibility of
scientific evidence. For this reason, I respectfully dissent from
section III.D.1 of the court's opinion.
Footnotes
1 509 U.S. 579 (1993).
2 Op. at 7 (quoting Daubert, 509 U.S. at 592-93).
3 The Daubert Court explained the subtle difference between
validity and reliability:
We note that scientists typically distinguish
between "validity"(does the principle support
what it purports to show?) and "reliability"
(does application of the principle produce
consistent results?). . . . [O]ur reference
here is to evidentiary reliability -- that is,
trustworthiness. In a case involving
scientific evidence, evidentiary reliability
will be based upon scientific validity.
502 U.S. at 590 n.9.
4 Several legal commentators have suggested such a hybrid
standard of review. See, e.g., Developments in the Law:
Confronting the New Challenges of Scientific Evidence, 108 Harv. L.
Rev. 1509, 1528 (1995) ("[C]ourts should consider developing a
hybrid approach in which appellate courts review de novo those
decisions involving general scientific propositions, but allow
trial courts greater discretion with regard to the particular facts
of each case."); David L. Faigman et al., Check Your Crystal Ball
at the Courthouse Door, Please: Exploring the Past, Understanding
the Present, and Worrying About the Future of Scientific Evidence,
15 Cardozo L. Rev. 1799, 1822 (1994) (advocating de novo review for
scientific knowledge that transcends individual cases but abuse of
discretion review for questions of witness competency); Michael H.
Gottesman, From Barefoot to Daubert to Joiner: Triple Play or
Double Error?, 40 Ariz. L. Rev. 753, 776-80 (1998) (listing the
dangers of applying abuse of discretion review to Daubert rulings);
Jay P. Kesan, An Autopsy of Scientific Evidence in a Post-Daubert
World, 84 Geo. L.J. 1985, 2038 (1996) ("Examination of scientific
theories or methodologies to determine whether they have evolved
sufficiently to amount to scientific knowledge is a task that lends
itself to de novo appellate review.").
5 See Alan W. Tamarelli, Jr., Daubert v. Merrell Dow
Pharmaceuticals: Pushing the Limits of Scientific Reliability --
The Questionable Wisdom of Abandoning the Peer Review Standard for
Admitting Expert Testimony, 47 Vand. L. Rev. 1175 (1994):
If Daubert decisions are reviewed [for abuse
of discretion], inconsistent decisions
concerning the admissibility of novel
scientific testimony may go unchecked from
. . . judge to judge. This inconsistent
standard of review inevitably may . . .
confound efforts to provide uniformity under
the Rules.
Id. at 1196.
6 See Faigman et al., supra note 4, at 1822 ("The validity
of scientific knowledge does not change from court to court;
assessments of that knowledge also should not change from court to
court.").
7 Kesan, supra note 4, at 2037. Michael Gottesman notes
that, in the wake of the Supreme Court's decision in General
Electric Co. v. Joiner, 522 U.S. 136 (1997), directing federal
courts to apply the abuse of discretion standard, such
inconsistency could undermine the integrity of the courts:
This [inconsistency in district courts in
light of Joiner] will be disquieting, if not
promotive of a general disrespect within the
populace for the integrity of federal judges.
Of course, variance between courtrooms would
be predictable even if these issues were given
to juries in every case, but disagreement
among juries is likely to be less offensive to
shared communal values than sanctioned
disagreement among judges.
Gottesman, supra note 4, at 778.
8 Op. at 31. The flexible nature of the Daubert criteria
allows more inconsistency among judges than the comparatively rigid
Frye standard. See Kaushal B. Majmudar, Daubert v. Merrell Dow: A
Flexible Approach to the Admissibility of Novel Scientific
Evidence, 7 Harv. J.L. & Tech. 187, 204 (1993) (noting the
potential for inconsistency and the irony that "the main reason
offered by the Court for its grant of certiorari [in Daubert] was
that the lower courts had been inconsistent in their methods and
results").
9 Op. at 31.
10 This uncertainty may be especially troubling in criminal
cases in which a defense theory rests primarily on the
admissibility of scientific testimony about a subject like
eyewitness identification.
11 See Kesan, supra note 4, at 2038 ("As appellate courts
repeatedly face the same sorts of scientific evidence, more uniform
adjudication at the trial and appellate levels will result.").
12 See Gottesman, supra note 4, at 777-78 ("[T]he issue of
general causation -- whether substance A is capable of causing
disease B -- does not vary from case to case . . . .").
13 Faigman et al., supra note 4, at 1821.
14 Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d
1128, 1130 (9th Cir. 1991) (quoting Reed v. State, 391 A.2d 364,
367 (Md. 1978)), vacated on other grounds, 509 U.S. 579 (1993).
The Supreme Court recently decided that federal courts should
review lower courts' Daubert rulings for abuse of discretion. See
General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512
(1997). But the Joiner Court's holding on this point appears to
rise exclusively out of a concern that courts of appeals were
reviewing too strictly those district court rulings excluding
scientific evidence on the grounds that the liberal thrust of the
Federal Rules of Evidence favors admissibility. See 118 S. Ct. at
517. The Court made clear that decisions excluding and admitting
evidence should be subject to the same standard of review. See id.
The Court did not address the potential for inconsistency under an
abuse of discretion standard or the possibility of a hybrid
standard of review.
15 See Faigman et al., supra note 4, at 1822 (discussing the
smoking/lung cancer example).
16 889 P.2d 319 (Okla. Crim. App. 1995). A few states have
cited the Supreme Court's decision in General Electric v. Joiner,
522 U.S. 136 (1997), for the proposition that Daubert rulings
should be reviewed only for abuse of discretion. See Smith v.
Belle Bonfils Mem'l Blood Ctr., No. 97CA0800, 1998 WL 684332, at *3
(Colo. App. Sept. 3, 1998); Monette v. Clinch, C8-98-329, 1998 WL
481892, at *1 (Minn. App. Aug. 18, 1998); Yamaha Motor Co. v.
Arnoult, 955 P.2d 661, 666 (Nev. 1998); DeVore v. Deloitte &
Touche, No. 01A01-9602-CH-00073, 1998 WL 68985, at *9 (Tenn. App.
Feb. 20, 1998). But the Joiner decision is not binding on Alaska
courts. Moreover, the Joiner Court's holding on this point was
based on a desire to stop courts of appeals from applying different
standards of review to rulings excluding and admitting expert
scientific testimony. See supra note 14. The Court did not
address issues of consistency or the possibility of a hybrid
standard of review. See id.
17 Taylor, 889 P.2d at 332 (footnote omitted).
18 475 S.E.2d 62 (W. Va. 1996).
19 Id. at 67 (quoting Gentry v. Mangum, 466 S.E.2d 171, 174
(W. Va. 1995)).
20 476 P.2d 474 (Alaska 1970).
21 674 P.2d 792 (Alaska App. 1983), rev'd on other grounds,
718 P.2d 129 (Alaska 1986).
22 See Pulakis, 476 P.2d at 479 (polygraph examinations);
Contreras, 674 P.2d at 799 (hypnosis).
23 Op. at 30.
24 Op. at 30-31 (quoting 861 P.2d 192 (N.M. 1993)).
25 Id. (quoting 861 P.2d at 169).
26 Indeed, the Alberico court itself noted that, with
respect to scientific theories about which "peer-reviewed
literature or law review articles"have been written, appellate
courts might be better suited because of lack of time pressure to
make a determination of scientific validity. See 861 P.2d at 205-
06.
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