TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT......................................................................... 3

ARGUMENT..................................................................................................... 4

I....... New York courts applying Frye should not use the “novelty test” to avoid further analysis of scientific evidence................................................................... 4

II...... New York courts should not mistake legal precedent for an analysis of reliability in evaluating scientific evidence under Frye............................................. 12

III..... This Court should provide guidance on the appropriate scope of the “relevant scientific community.”............................................................................ 18

IV..... New York’s interest in effectively scrutinizing scientific evidence for reliability could be aided by using the factors discussed in Daubert to conduct a Frye analysis.................................................................................................. 26

CONCLUSION................................................................................................ 30

   1. TABLE OF AUTHORITIES

Cases

In re Accutane Litig.,
234 N.J. 340 (2018)..................................................................................... 29

Ex parte Chaney,
563 S.W.3d 239 (Tex. Crim. App. 2018)........................................................ 8

Chesson v. Montgomery Mutual Ins. Co.,
75 A.3d 932 (Md. 2013)............................................................................... 16

Coble v. State,
330 S.W.3d 253 (Tex. Crim. App. 2010)...................................................... 16

State ex rel. Collins v. Superior Court,
644 P.2d 1266 (Ariz. 1982).......................................................................... 22

Commonwealth v. Foley,
38 A.3d 882 (Pa. Super. Ct. 2012).................................................................. 7

Commonwealth v. Shanley,
919 N.E.2d 1254 (Mass. 2010)................................................................. 8, 16

Contreras v. State,
718 P.2d 129 (Alaska 1986)......................................................................... 23

Cornell v. 360 W. 51st St. Realty, LLC,
22 N.Y.3d 762 (2014)............................................................................ 13, 19

Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993).............................................................................. passim

Frye v. United States,
293 F. 1013 (D.C. Cir. 1923)................................................................. passim

Marso v. Novak,
42 A.D.3d 377 (1st Dep’t 2007)..................................................................... 9

Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009).................................................................................... 24

Motorola Inc. v. Murray,
147 A.3d 751 (D.C. 2016)...................................................................... 27, 28

Parker v. Mobil Oil Corp.,
7 N.Y.3d 434 (2006)................................................................... 14, 18, 25, 28

People v. Boone,
30 N.Y.3d 521 (2017).................................................................................. 29

People v. Calabro,
161 A.D.2d 375 (1st Dep’t 1990).............................................................. 9, 28

People v. Collins,
49 Misc. 3d 595 (Sup. Ct. Kings Cty. 2015)............................................ 19, 25

People v. Foster-Bey,
158 A.D.3d 641 (2d Dep’t 2018)............................................................ 15, 17

People v. Garcia,
39 Misc. 3d 482 (Sup. Ct. Bronx Cty. 2013)...................................... 10, 15, 18

People v. John.
27 N.Y.3d 294 (2016).................................................................................. 24

People v. Johnson,
27 N.Y.3d 199 (2016).................................................................................. 29

People v. LeGrand,
8 N.Y.3d 449 (2007).......................................................................... 5, 12, 13

People v. Luna,
989 N.E.2d 655 (Ill. App. Ct. 2013).............................................................. 14

People v. McKown,
875 N.E.2d 1029 (Ill. 2007).................................................................... 15, 16

People v. Rodriguez,
Ind. No. 5471/2009, Decision and Order (Sup. Ct. N.Y. Cty. May 1, 2012).. 6, 7

People v. Shreck,
22 P.3d 68 (Colo. 2001)............................................................................. 5, 6

People v. Slone,
76 Cal. App. 3d 611 (Cal. Ct. App. 1978)..................................................... 20

People v. Smith,
63 N.Y.2d 41 (1984).................................................................................... 20

People v. Vining,
28 N.Y.3d 686 (2017).................................................................................. 29

People v. Wesley,
83 N.Y.2d 417 (1994)........................................................................... passim

Reed v. State,
391 A.2d 364 (Md. 1978)............................................................................. 23

Starks v. City of Waukegan,
123 F. Supp. 3d 1036 (N.D. Ill. 2015)........................................................... 21

State v. Alberico,
861 P.2d 192 (N.M. 1993)........................................................................... 14

State v. Coon,
974 P.2d 386 (Alaska 1999)........................................................................... 6

State v. Hull,
788 N.W.2d 91 (Minn. 2010)....................................................................... 17

State v. Sharpe,
SP-7326 (Alaska, Jan. 4 2019)....................................................................... 8

State v. Ward,
694 S.E.2d 738 (N.C. 2010)......................................................................... 16

Sybers v. State,
841 So.2d 532 (Fla. Dist. Ct. App. 2003)...................................................... 22

Statutes & Rules

Federal Rule of Evidence 702....................................................................... 4, 27

Colorado Rule of Evidence 702........................................................................... 6

Other Authorities

David L. Faigman and Claire Lesikar, Organized Common Sense, 64 DePaul L. Rev. 421 (2014)........................................................................................... 13

David H. Kaye, Forensic Science, Statistics & the Law, “The New York City Medical Examiner’s Office ‘Under Fire’ for Low Template DNA Testing,” Sept. 11 2017, http://for-sci-law.blogspot.com/2017/09/the-new-york-city-medical-examiners.html................................................................................. 7

David H. Kaye, et al., The New Wigmore on Evidence, “Limiting Strict Scrutiny by Methodology,” § 9.5.1 (2018).................................................................. 16

DNA Exonerations in the United States, The Innocence Project, https://www.innocenceproject.org/dna-exonerations-in-the-united-states/ (last visited June 26, 2019).................................................................................... 1

Eric S. Lander, Fixing Rule 702: The PCAST Report and Steps to Ensure the Reliability of Forensic Feature-Comparison Methods in Criminal Courts, 86 Fordham L. Rev. 1661 (2018)................................................................. 11, 12

Harry T. Edwards, Solving the Problems That Plague the Forensic Science Community, 50 Jurimetrics 5 (2009)............................................................. 23

James E. Starrs, Frye, v. United States Restructured and Revitalized, 26 Jurimetrics J. 249 (1986)................................................................................ 7

Jane Campbell Moriarty, Deceptively Simple: Framing, Intuition, and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence, 86 Fordham L. Rev. 1687 (2018)..................................................................................... 10

Lauren Kirchner, Traces of Crime: How New York’s DNA Techniques Became Tainted, NY Times, Sept. 4, 2017, https://www.nytimes.com/2017/09/04/nyregion/dna-analysis-evidence-new-york-disputed-techniques.html.......................................................... 17, 25, 26

Michael J. Saks, et al., Forensic bitemark identification: weak foundations, exaggerated claims, 3 J. L. Biosciences 538 (2016)......................................... 9

Misapplication of Forensic Science, The Innocence Project, https://innocenceproject.org/causes/misapplication-forensic-science/ (last visited June 26, 2019).................................................................................... 2

National Academy of Sciences, Strengthening Forensic Science in the United States (2009).......................................................................................... 21, 24

Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991)........ 20

President’s Council of Advisors on Science and Technology, Report to the President: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016) ………………………………………passim

2. INTEREST OF THE AMICUS CURIAE

The Innocence Project is a national litigation and public policy organization dedicated to providing pro bono legal and related investigative services to indigent prisoners whose actual innocence may be established through post-conviction DNA evidence.  To date, the work of the Innocence Project and affiliated organizations has led to the exoneration of 365 individuals who post-conviction DNA testing has shown were wrongly convicted of crimes they did not commit. . . .

The Innocence Project submits this brief because the issues presented have serious implications for ensuring defendants are not wrongfully convicted through the admission of unreliable forensic science.  The use of unreliable forensic sciences occurs in 45 percent of exonerations of innocent defendants established through post-conviction DNA testing.  . . . .

3. PRELIMINARY STATEMENT

As currently applied in New York, the Frye standard for the admissibility of scientific evidence is susceptible to a level of confusion and complacency that poses a serious risk to the integrity of criminal proceedings in this state.  Therefore, this Court should take steps to provide the lower courts with clear guidance in order to establish an effective, consistent, and fair application of the “general acceptance” test for the admissibility of scientific evidence.  And the Court should remind the trial courts that trial courts must take seriously the responsibility of evaluating contested scientific evidence for reliability, particularly where a defendant’s freedom is at stake.

First, the Court should caution lower courts against rigidly applying “novelty” as a threshold test to bypass further analysis of scientific evidence, and provide specific guidance that underscores how “novelty” in the scientific fields can be a fluid concept.  Second, the Court should reiterate that legal precedent, while a useful tool, cannot be a substitute for examining whether a scientific technique is “generally accepted as reliable by the relevant scientific community.”  In particular, courts should be wary of relying on prior decisions where there is new evidence that the scientific consensus has changed.  Third, the Court should provide guidance on the definition of the “relevant scientific community” that makes clear that the opinions of a few experts, particularly those with financial or professional interest in the proffered methodology, are inadequate to represent the relevant scientific community.  Finally, [omitted].

4. ARGUMENT

I. New York courts applying Frye should not use the “novelty test” to avoid further analysis of scientific evidence.

In seminal cases applying Frye, this Court has discussed the concept of “novelty” only in general terms to explain what scientific evidence courts should evaluate for general acceptability.  See, e.g., People v. Wesley, 83 N.Y.2d 417, 435 (1994) (“[W]here the scientific evidence sought to be presented is novel, the test is that articulated in Frye.”); People v. LeGrand, 8 N.Y.3d 449, 455 (2007) (“[I]n recognition that expert testimony of this nature may involve novel scientific theories and techniques, a trial court may need to determine whether the proffered expert testimony is generally accepted by the relevant scientific community”) (citations omitted).  Many courts have interpreted this language to mean that “novelty” is a threshold question that determines whether scientific evidence is subject to Frye scrutiny at all.  The “novelty test” risks oversimplifying and abusing the concept of “novelty”—which is in fact a wholly fluid concept in science—to forego any real Frye analysis.  On one hand, courts may construe novelty too narrowly and refuse to scrutinize to new changes to an established methodology.  On the other hand, courts may construe novelty too broadly and refuse to scrutinize previously established methodologies that have since lost favor in the scientific community.  Compounding these problems, this Court has not provided guidance on what constitutes “novel” scientific evidence.   

Even where, as here, the underlying scientific theory is generally accepted, parties should be able to challenge truly novel applications of that underlying theory.  See People v. Shreck, 22 P.3d 68, 76 (Colo. 2001) (criticizing courts for not subjecting evidence previously admitted under Frye to new scrutiny, “despite improvements or other developments in scientific technologies”).[1]  This Court has recognized that, where a proposed methodology or hypothesis builds upon established scientific theory, courts must still exercise proper diligence before categorizing the proposed methodology or hypothesis as “not novel” and ending its analysis there. See Wesley, 83 N.Y.2d at 438 (Kaye, J.C., concurring) (finding that the addition of new steps to the traditional process for analyzing DNA, in order to compare two DNA samples, was “truly novel”).  Within the forensic sciences, dozens of new methodologies have emerged, many of which build on other non-novel methodologies.  As forensic sciences continue to innovate, courts must continue to scrutinize those innovations under Frye.

Courts should hold a Frye hearing where the methodology as a whole has not yet been proven reliable, even if some elements of the methodology have been proven reliable.  Some courts, however, have improperly focused on the non-novel elements of a proffered methodology, rather than evaluating the reliability of the methodology as a whole.  For example, in People v. Rodriguez, Ind. No. 5471/2009, Decision and Order (Sup. Ct. N.Y. Cty. May 1, 2012), the District Attorney argued that the likelihood ratios generated by the Forensic Statistical Tool (“FST”) should be admitted because likelihood ratios are not novel.  Id.  The proper focus of Frye inquiry though, is whether the methodology used to calculate the proffered likelihood ratios is generally accepted—not whether, in the abstract, likelihood ratios are a generally accepted statistical concept.  See David H. Kaye, Forensic Science, Statistics & the Law, “The New York City Medical Examiner’s Office ‘Under Fire’ for Low Template DNA Testing,” Sept. 11 2017, http://for-sci-law.blogspot.com/2017/09/the-new-york-city-medical-examiners.html (analogizing the Rodriguez court’s decision to admitting any linear regression model on the grounds that the method of least squares is not novel); see also James E. Starrs, Frye, v. United States Restructured and Revitalized, 26 Jurimetrics J. 249, 254 (1986) (approval of gas chromatographic evidence in one case should not be read as giving “carte blanche approval to all gas chromatographs,” especially as new types of detectors or sampling methods emerge).

At the same time, non-novel forensic techniques that once enjoyed “general acceptance” have since been challenged, or outright discredited, by new scientific developments.  As other Frye jurisdictions have recognized, it cannot be the law that a technique is insulated from new scientific criticism simply because it is not “novel.”  See, e.g., Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. Ct. 2012) (“[N]ovelty is not restricted to new science, and even ‘bedrock’ scientific principles may be subject to a Frye analysis if those principles become disputed.”) (internal quotation marks and citation omitted); Commonwealth v. Shanley, 919 N.E.2d 1254, 1264 n.15 (Mass. 2010) (“[T]he evolving nature of scientific and clinical studies of the brain and memory and the controversy surrounding those studies [on dissociative memory loss] made it prudent for the judge to proceed with a Lanigan hearing in this case.”).  Daubert jurisdictions have also recognized that new scientific evidence may necessitate a new evidentiary hearing.  See, e.g., State v. Sharpe, SP-7326, (Alaska, Jan. 4 2019) at 24 (“If an appellate court has made a Daubert determination and then new scientific research becomes available, or if a litigant identifies research that the appellate court overlooked, the trial court would be justified in holding an evidentiary hearing to make a complete record and rule in the alternative.”).  Similarly, New York courts should also ensure that “non-novel” methodologies and hypotheses continue to be accepted as reliable within the scientific community.  New York courts interpreting Frye, however, often fall short of this benchmark. 

For example, bite mark evidence and hair microscopy have both been effectively discredited.  See, e.g., Ex parte Chaney, 563 S.W.3d 239, 257 (Tex. Crim. App. 2018) (“[T]he body of scientific knowledge underlying the field of bite mark comparisons [has] evolved in a way that discredits almost all the probabilistic bite mark evidence at trial.”) (vacating conviction based on bite mark evidence); PCAST Report at 87 (“PCAST finds that bite mark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards.”); PCAST Report at 13 (“PCAST’s own review of the cited papers finds that these studies [of human hair comparisons] do not establish the foundational validity and reliability of hair analysis.”).  Yet despite a change in the scientific consensus, both have effectively evaded Frye scrutiny because neither technique is considered “novel.”  See Michael J. Saks, et al., Forensic bitemark identification: weak foundations, exaggerated claims, 3 J. L. Biosciences 538, 541 (2016) (“Despite the lack of empirical evidence to support its claims, to date no court in the United States has excluded [forensic odontology] expert evidence for failing to meet the requisite legal standard for admission of expert testimony.”); People v. Calabro, 161 A.D.2d 375 (1st Dep’t 1990) (finding sufficient evidence of guilt based upon testimony of three forensic odontologists and admission of similar testimony in another case nine years prior, without discussing whether forensic odontology was admissible evidence in the first instance). 

Lower courts faced with questions of where to draw the line between “novelty” and established science have ruled inconsistently.  Compare Marso v. Novak, 42 A.D.3d 377, 378 (1st Dep’t 2007) (granting judgment notwithstanding verdict where plaintiff’s expert could not show that her conclusions were generally accepted, even though the underlying methodology was generally accepted), with People v. Garcia, 39 Misc. 3d 482, 484 (Sup. Ct. Bronx Cty. 2013) (“The application of a generally accepted technique, even though its application in a specific case was unique or modified, does not require a Frye hearing.”).  This Court should remind trial courts to consider potential changes in the scientific consensus; otherwise, the temptation to evade a true Frye inquiry by simply checking the “not novel” box is as strong as it is problematic.  See Jane Campbell Moriarty, Deceptively Simple: Framing, Intuition, and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence, 86 Fordham L. Rev. 1687, 1697 (2018) (“Rather than addressing the complexity head on and resolving [the pointed science-based critiques of forensic comparison methods], courts tend to use a variety of analysis-avoiding methods in evaluating the reliability of [forensic comparison method] evidence, even after learning of its shortcomings in the NRC Report.”).

Here, no party is challenging the admissibility of DNA evidence in general, which has been admissible in New York for over 20 years; nor does the Innocence Project suggest that a Frye hearing must be held in every instance of contested scientific evidence.  Rather, the challenges in this case are to two new techniques for analyzing DNA that were not subjected to a Frye hearing to evaluate whether they are generally accepted by the scientific community for the use to which they were put.  In situations like this one, the concept of “novelty” should not be used as an excuse to turn a blind eye to evidence that warrants additional examination. 

Finally, a widely used technique may still be “novel” where its use is primarily in non-scientific communities.  At minimum, use alone is not a proper factor in determining whether to forego a Frye hearing, as it is incumbent upon courts to look “under the hood” of even widely-used forensic methods.  Indeed, many unreliable forensic methods initially find their way into courts through their use as investigative techniques.  PCAST Report at 32 (“[M]any of these difficulties with forensic science may stem from the historical reality that many methods were devised as rough heuristics to aid criminal investigations and were not grounded in the validation practices of scientific research.”). 

The investigative origin of forensic methods poses two problems.  First, “fundamentally, the forensic sciences do not yet have a well-developed ‘research culture.’”  Id.  Although the forensic community has made significant strides to increase its scientific rigor in the past few years, courts should be wary of forensic techniques that are grounded in casework and investigative experience, as opposed to scientific research and knowledge.  See Eric S. Lander, Fixing Rule 702: The PCAST Report and Steps to Ensure the Reliability of Forensic Feature-Comparison Methods in Criminal Courts, 86 Fordham L. Rev. 1661 (2018) (describing how previously untested forensic methods are now undergoing empirical validity testing).[2]  Second, the standard of reliability required for just outcomes may be lower in an investigation, which is by its nature exploratory, than a prosecution, which seeks a final resolution.  See PCAST Report at 4 (“In investigations, insights and information may come from both well-established science and exploratory approaches.  In the prosecution phase, forensic science must satisfy a higher standard.”).  Although a technique’s “use” can serve as a helpful factor in determining whether court should treat it as “novel,” trial courts should be cautious not to conflate use outside of the courtroom with reliability. 

II. New York courts should not mistake legal precedent for an analysis of reliability in evaluating scientific evidence under Frye.

Directly related to the “novelty” inquiry is the role of precedent in Frye litigation.  This Court noted in LeGrand that “[o]nce a scientific procedure has been proved reliable,” scientific evidence may be considered not novel, thereby obviating the need for a Frye hearing.  8 N.Y.3d at 458 (citing Wesley, 83 N.Y.2d at 436 (Kaye, Ch. J., concurring)).  Thus, the test for determining when a Frye hearing should be held is whether prior proceedings have proved the proffered method’s reliability.  Once reliability has been proven, other courts “may take judicial notice of reliability of the general procedure.”  Id. at 458 (emphasis added).  In practice, similar to the problems inherent in the “novelty test,” courts have misconstrued this language and too often used legal precedent as a proxy for scientific acceptance, causing the most critical inquiry—reliability—to get lost in the shuffle.  Therefore, the Court should take this opportunity to provide crucial guidance to courts tasked with applying Frye, and, specifically, to instruct that (1) because science is constantly evolving, courts are not bound forever by a prior court’s Frye ruling; (2) a prior court’s ruling may be evidence of admissibility only where a Frye hearing was actually held; and (3) reliance on a prior court’s ruling may be improper where a party submits new evidence bearing on the challenged technique’s reliability or general acceptance within the scientific community.

Although Frye represents an intersection between law and science, these two fields approach “precedent” in fundamentally different ways.  See David L. Faigman and Claire Lesikar, Organized Common Sense, 64 DePaul L. Rev. 421, 422 (2014) (“[T]here is a basic disconnect between how scientists approach the empirical world and the way courts do so.”).  As this Court itself has recognized, “scientific understanding, unlike a trial record, is not by its nature static; the scientific consensus prevailing at the time of the Frye hearing in a particular case may or may not endure.”  Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 786 (2014).  Similarly, the Supreme Court in Daubert acknowledged that, while reliance on precedent is axiomatic in our legal system, “[s]cientific conclusions are subject to perpetual revision.”  Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596-97 (1993).  Other Frye jurisdictions have reached similar conclusions.  See, e.g., People v. Luna, 989 N.E.2d 655, 670 (Ill. App. Ct. 2013) (“[C]onstant scientific advances in our modern era may affect our inquiry as to the novelty of a particular methodology.”) (internal quotations omitted).  Therefore, when deciding the admissibility of scientific evidence, “courts should not be obliged to defer to past precedents: they should look afresh at the scientific issues.”  PCAST Report at 144.

  While a court may rely on a prior Frye hearing in the interest of judicial economy, a court should not rely on another court’s reliance on a third court’s Frye hearing.  Admissions without Frye hearings are only evidence of judges’ votes, as opposed to scientists’ votes.  See Parker, 7 N.Y.3d, 434, 447 (2006) (“[Frye] emphasizes counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion.” (internal quotation marks omitted) (citing Wesley, 83 N.Y.2d at 439 (Kaye, C.J., concurring); see also State v. Alberico, 861 P.2d 192, 203 (N.M. 1993) (“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.”).

When courts admit evidence based upon other courts’ findings without a Frye hearing—as was the case in Foster-Bey regarding the combination of FST and Low Copy Number (“LCN”) DNA evidence—courts compound the illusion that a methodology is generally accepted by the scientific community.  Courts should be wary of recycling prior courts’ decisions, especially when the scientific consensus has shifted.  For example, in People v. Garcia, the trial court cited judicial opinions admitting LCN DNA without a Frye hearing.  39 Misc. 3d at 487.  While the Garcia court correctly pointed out that LCN DNA profiling had been admitted in 125 cases, this did not mean that it had been proven reliable in 125 Frye hearings.  The Illinois Supreme Court recognized a similar species of error in People v. McKown, where the lower appellate court relied on a prior appellate decision that “merely reaffirmed” a third court’s decision to admit horizontal gaze nystagmus (“HGN”) evidence, [3] which itself relied heavily on a fourth court’s Frye hearing.  875 N.E.2d 1029, 1037–38 (Ill. 2007).  The Illinois Supreme Court held that this reliance on precedent was improper, and a Frye hearing should have been held, where the evidence of general acceptance was not “unequivocal or undisputed.”  Id. at 1046.  As evidence of such a dispute, the Illinois Supreme Court cited both more recent opinions from other states’ courts refusing to admit HGN evidence, id. at 1041-46, and more recent scientific articles questioning the reliability of HGN evidence, id. at 1044-47. 

Furthermore, where a trial court does rely on the findings of a previous hearing, that court should be convinced that the hearing was fair and thorough.  “Especially in the early days of a scientific technique, imbalanced hearings are not uncommon.”  David H. Kaye, et al., The New Wigmore on Evidence, “Limiting Strict Scrutiny by Methodology,” § 9.5.1 (2018). 

A number of appellate courts in other states have similarly recognized that trial courts should not blindly accept scientific evidence based on its admission in a prior case.  See, e.g., Coble v. State, 330 S.W.3d 253, 276 n.56 (Tex. Crim. App. 2010) (“[C]ourts do not ‘grandfather in’ expert testimony in a particular field or by a particular witness simply because the court has admitted expert testimony in that field or by that witness in the past.”); Shanley, 919 N.E.2dat 1264 n.15 (“[W]e have not ‘grandfathered’ any particular theories or methods for all time, especially in areas where knowledge is evolving.”); Chesson v. Montgomery Mutual Ins. Co., 75 A.3d 932, 938 (Md. 2013) (“Even scientific techniques once considered to be generally accepted are excluded when subsequent scientific studies bring their reliability and validity into question and show a fundamental controversy within the relevant scientific community.”); State v. Ward, 694 S.E.2d 738, 746 (N.C. 2010) (“[T]he length of time a method has been employed does not necessarily heighten its reliability or alleviate our concerns.”); c.f., State v. Hull, 788 N.W.2d 91, 103 n.3 (Minn. 2010) (noting that the “lengthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mack”) (alteration in original).

Published case law can provide a valuable tool in determining whether a scientific technique that was previously subjected to a Frye hearing is still generally accepted by the scientific community.  Courts, however, should be instructed not to lose sight of the fact that the Frye test emphasizes counting scientists’—not judges’—votes.  While published legal opinions may sit unaltered for decades, science is a field of ever-evolving developments.  Therefore, courts must be conscious of this fact and not simply admit evidence because previous courts have. 

In this case, none of courts cited by the trial court had ever subjected the contested evidence to a Frye hearing.  The trial court itself acknowledged that FST has never been subject to a Frye hearing, even while relying on other courts’ blind acceptance of that technique to support its own determination.  People v. Foster-Bey, 158 A.D.3d 641, 641 (2d Dep’t 2018).  In addition, the Office of Chief Medical Examiner (“OCME”), which introduced the contested evidence, no longer uses LCN or FST.  See Lauren Kirchner, Traces of Crime: How New York’s DNA Techniques Became Tainted, NY Times, Sept. 4, 2017, https://www.nytimes.com/2017/09/04/nyregion/dna-analysis-evidence-new-york-disputed-techniques.html. 

Thus, this case serves as a prime example of the dangers of a trial court deciding to use legal precedent as a substitute for its own determination of whether a technique is “generally accepted as reliable in the scientific community.”  Parker, 7 N.Y.3d at 449.  In light of the above, this Court should seize this opportunity to provide much-needed guidance on the appropriate use of precedent and under what circumstances reconsideration of previously-admitted scientific evidence is warranted under Frye.  As discussed in Section 4, infra, the adoption of Daubert principles, including encouraging courts to look to factors beyond “acceptability”—such as whether the technique in question can and has been tested, has been subjected to peer review, and has known or potential error rates—would further this objective.

III.This Court should provide guidance on the appropriate scope of the “relevant scientific community.”

In order to admit scientific evidence under Frye, a party must show that the evidence is generally accepted as reliable by the “relevant scientific community.”  As with “novelty,” this Court has not provided guidance to lower courts on how to interpret the “relevant scientific community” standard, leading to disparate and anomalous results.  Compare Garcia, 39 Misc. 3d at 487-88 (admitting testimony concerning LCN and FST based on studies conducted by the OCME despite the fact that it is the only government facility using these techniques), with People v. Collins, 49 Misc. 3d 595, 611, 613, 616, 618 (Sup. Ct. Kings Cty. 2015) (finding that the OCME’s research validating LCN and FST cannot establish general acceptance when no other laboratory uses these techniques as evidence in criminal cases).  Frye requires a careful balancing act when it comes to assessing the composition of the relevant community.  Because it is a general acceptance test, acceptance need not be universal; however, a court’s job must not end upon a finding of mere acceptance in the form of a single proponent of a technique. See, e.g., Cornell, 22 N.Y.3d at 783 (A showing that an expert’s opinion has “some support” is insufficient to establish general acceptance in the relevant scientific community). 

Here, the OCME, which developed the methodology in question, is the only entity in the United States that used the scientific techniques at issue to develop and analyze DNA profiles for criminal cases.  Collins, 49 Misc. 3d at 611, 618.  Moreover, the OCME is the only entity that used FST for any purpose.  Id.  Under these facts, it is likely that the trial court here did as Chief Judge Kaye cautioned against in Wesley: conflated the “judgment of the scientific community” with “the opinion of a few experts.”  Wesley, 83 N.Y.2d at 438 (Kaye, C.J., concurring). 

Despite this cautionary language, many courts have allowed small groups of experts who support a given technique to define themselves as the relevant scientific community, thus guaranteeing general acceptance.  One commentator referred to this practice as “gerrymandering” to create a majority by defining the scientific community “narrowly and uncritically.”  Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom 15 (1991).  For instance, in the case of now-discredited bite mark identification evidence, some courts have defined the relevant scientific community as the forensic dentists themselves, i.e., those whose careers are largely dependent on the validity of such evidence.  See, e.g., People v. Smith, 63 N.Y.2d 41, 63 (1984) (basing admission on the claim that the technique of comparing one photo of a bite mark to another was sufficiently reliable and had been “accepted by the scientific community,” comprised of prosecution and defense experts who together “acknowledged the reliability and acceptance of photographic comparisons”); People v. Slone, 76 Cal. App. 3d 611, 624-25 (Cal. Ct. App. 1978) (relying on testimony of three forensic odontologists which showed “bite-mark-identification technique had gained general acceptance in the scientific community of dentistry—the relevant scientific community involved”). 

By contrast, one federal court, considering the scientific validity of bite mark analysis in a civil suit against forensic dentists, brought by Benny Starks, who served over twenty years in prison after a bitemark “match” was used to convict him of a rape he did not commit, observed:

Starks argues that Dentist Defendants’ bite mark “analysis” was so far outside the norms of bite mark matching, such as they were in 1986, that it violated due process. For this assertion, Starks relies on the opinion of Senn, a forensic odontologist himself who has testified as a bite mark expert in many criminal cases. Doc. 313-20 at 48-50 (Senn’s CV). Eighty years ago, Upton Sinclair observed: “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!” Upton Sinclair, I, Candidate for Governor: And How I Got Licked 109 (Univ. of Calif. Press 1994) (1935). Illustrating Sinclair’s point, Senn opines not that bite mark matching is inherently unreliable, but only that Dentist Defendants made analytical errors and overstated their conclusions in Starks’s criminal case.

Starks v. City of Waukegan, 123 F. Supp. 3d 1036, 1051-52 (N.D. Ill. 2015) (internal citations omitted).  The court went on to cite the National Academy of Sciences’s (“NAS”) observation, also relevant here, that “[a]lthough the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment.”  Id. (quoting National Academy of Sciences, Strengthening Forensic Science in the United States 176 (2009)) (emphasis in original).

A broader view of the relevant scientific community is particularly important where certain experts, like the dentists discussed in Starks, have a vested interest in promoting a particular technique.  “If the field is too narrowly defined,” Chief Judge Kaye observed, “the judgment of the scientific community will devolve into the opinion of a few experts.  The field must still include scientists who would be expected to be familiar with the particular use of the evidence at issue, however, whether through actual or theoretical research.”   Wesley, 83 N.Y.2d at 438-39 (Kaye, J.C., concurring) (citation omitted).  “A Frye court should be particularly cautious when . . . the supporting research is conducted by someone with a professional or commercial interest in the technique.”  Id. at 440.  Indeed, the court in the original Frye decision, in examining the admissibility of systolic blood pressure deception testing, did not limit its view of the relevant scientific community to polygraph experts, but rather held that the technique had not gained general acceptance because it had “not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (emphasis added).

Other jurisdictions have similarly recognized that courts should look to outside, disinterested experts with experience in the relevant field to confirm that such experts also accept those theories.  See, e.g., Sybers v. State, 841 So.2d 532, 543 (Fla. Dist. Ct. App. 2003) (“such assertions [that a technique is generally accepted] by experts who developed and performed the testing procedures are not, alone, sufficient.”); State ex rel. Collins v. Superior Court, 644 P.2d 1266, 1285 (Ariz. 1982) (“This requirement is not satisfied with testimony from a single expert or group of experts who personally believe the challenged procedure is accepted or is reliable.”); Reed v. State, 391 A.2d 364, 382 (Md. 1978) (“In general, members of the relevant scientific community will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it”); Contreras v. State, 718 P.2d 129, 135 (Alaska 1986) (“We define the relevant scientific community as the academic, scientific, and medical or health-care professions which have studied and/or utilized hypnosis for clinical, therapeutic, research and investigative applications.”).  As such, this Court should instruct lower courts that under Frye, the “relevant scientific community” must be sufficiently broad as to include disinterested scientists with experience in related fields.

Courts should be wary of defining the “relevant scientific community” too narrowly where experts have a professional or pecuniary interest not only in the validity of a methodology, but also in the ultimate disposition of the case.  For example, Judge Edwards has warned that a close relationship between forensic scientists and law enforcement administrators may “inhibit good science and ultimately adversely affect the credibility of the field.”  Harry T. Edwards, Solving the Problems That Plague the Forensic Science Community, 50 Jurimetrics 5, 15 (2009); see also PCAST Report at 13-14 (to avoid potential bias and other issues, scientific evaluations are “best carried out by a science-based agency that is not itself involved in the application of forensic science within the legal system”).  Indeed, the Supreme Court in Melendez-Diaz rejected the State of Massachusetts’s arguments that forensic science was inherently “neutral” or “reliable.”  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009) (“Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”) (quoting National Academy of Sciences, Strengthening Forensic Science in the United States 23–24 (2009)); see also Edwards, supra, at 19 (characterizing Melendez-Diaz as “a not very subtle indictment of our existing forensic science system”).  This Court similarly recognized the potential biases of forensic DNA analysts in People v. John.  27 N.Y.3d 294, 311 (2016) (“We will not indulge in the science fiction that DNA evidence is merely machine-generated, a concept that reduces DNA testing to an automated exercise requiring no skill set or application of expertise or judgment.”).

Likewise, enhanced scrutiny in defining the “relevant scientific community” might be appropriate where the proffered evidence relies on scientific techniques that are so new that the scientific community has not had a chance to determine whether to accept them.  Wesley, 83 N.Y.2d at 439 (Kaye, C.J., concurring) (“[A]bsence of controversy reflected not the endorsement perceived by our colleagues, but the prematurity of admitting this evidence. Insufficient time had passed for competing points of view to emerge.”).  Because the Frye test “emphasizes counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion,” courts cannot determine whether a novel technique is generally accepted before scientists have been given enough time and information to decide how to cast their votes.  Parker, 7 N.Y.3d at 447 (internal quotation marks omitted) (citing Wesley, 83 N.Y.2d at 439 (Kaye, C.J., concurring).  That is not to say that recently introduced methodologies should be categorically rejected, but rather, that courts should recognize instances where “counting scientists votes” alone does not necessarily serve as an accurate proxy for reliability, such as where there has been insufficient time to establish a robust enough “community.”  

[omitted]

IV. New York’s interest in effectively scrutinizing scientific evidence for reliability could be aided by using the factors discussed in Daubert to conduct a Frye

[omitted]

CONCLUSION

For the reasons discussed herein, the time has come for this Court to speak on issues that have led to inconsistent and problematic results among courts when evaluating proffered scientific evidence under Frye.  This case provides an ideal opportunity for this Court to provide guidance that emphasizes the critical role of the courts in gatekeeping against evidence based on “novel” methodologies and hypotheses that have not yet been proven to be reliable, as well as previously accepted methodologies and hypotheses that have since been discredited by new scientific developments.  Incorporating the principles underlying the Daubert standard, which has been embraced by 40 states, would be a particularly effective tool to help courts bring Frye into the future.  Only with such guidance will courts achieve greater effectiveness, consistency, and fairness in their treatment of the admissibility of scientific evidence.     

Dated:         [, 2019]
                   New York, NY

                                                          Respectfully submitted,

                                                          ________________________________

CERTIFICATION

          I certify pursuant to §500.13(c) of the Rules of Practice of this Court that the total word count for all printed text in the body of the brief is 6,936 words.

Dated:         [, 2019]
                   New York, NY

                                                Respectfully submitted,

                                                          ___________________________________

                                                By:    Konrad Cailteux

[1] For this reason, the Colorado Supreme Court in Shreck rejected the Frye standard in favor of Colorado Rule of Evidence 702, which emphasizes “reliability and relevance of the scientific evidence.”  Id. at 78.  Other state supreme courts have also criticized Frye’s novelty test in adopting Daubert.  See, e.g., State v. Coon, 974 P.2d 386, 397–98 (Alaska 1999) (finding that Frye’s limitation to “novel” scientific evidence is not an advantage to Daubert’s application to “all scientific knowledge”), abrogated on other grounds by State v. Sharpe, 435 P.3d 887, 899 (Alaska 2019).

[2] Courts should also be wary of experts overstating the accuracy of otherwise reliable methods.  For example, Professor Lander describes how fingerprint identifications, once described by the Department of Justice as “infallible,” have since been shown to have a real world error rate as high as 1 in 24.  Lander, Fixing Rule 702, 86 Fordham L. Rev. at 1669–71.

[3] A type of field sobriety test that measures a subject’s eye movements as they track an object moving side to side.