U.S. Department of Justice

Federal Bureau of Investigation

October 1999   Volume 1   Number 3

Part 2 of Presentations at the
2nd International Symposium on the
Forensic Examination of Questioned Documents
Albany, New York, June 14 – 18, 1999

Appendix C: States Applying Frye Post-Daubert

Alabama. Ex parte Turner, __ So. 2d __, 1998 Ala. LEXIS 8 (Ala. 1998) (the state's DNA statute, Ala. Code § 36-18-30, superseded the Frye-plus test adopted in Ex parte Perry, 586 So. 2d 242 (Ala. 1991), and adopted Daubert in its place. Frye, however, remains the rule for other types of scientific evidence).

Arizona. State v. Johnson, 186 Ariz. 329, 331, 922 P.2d 294, 296 (1996) (en banc) (DNA) ("[T]he Frye rule, which has been followed without causing significant problems because it was first adopted in 1962, remains the rule in Arizona."); State v. Bible, 175 Ariz. 549, 858 P.2d 1152, 1183 (1993) (DNA), cert. denied, 511 U.S. 1046 (1994).

California. People v. Leahy, 8 Cal. 4th 587, 604, 882 P.2d 321, 323, 34 Cal. Rpt. 2d 663, 673 (1994) (Horizontal Gaze Nystagmus must satisfy Frye test) (The "Kelly formulation [of Frye under Cal. Evid. Code] survived Daubert ...").

Colorado. Lindsey v. People, 892 P.2d 281, 288 (Colo. 1995) (en banc) (applying Frye; DNA statistics generally accepted despite "subgroup" debate) (noting Daubert "issue not now before us") ("Despite the criticisms levelled at Frye, this standard is not far removed from the evaluation required under FRE 702"). Id. at 289 n. 23 (concurrence argued for Daubert test).

Florida. Hayes v. State, 660 So. 2d 257, 262, 264 (Fla. 1995) ("We have recently made it clear that Florida utilizes the Frye test. ..."; courts may take judicial notice on some aspects of DNA; but correcting for band-shifting is not generally accepted, citing NAS 1992 report). See also Flanagan v. State, 625 So. 2d 827, 829 n. 2 (Fla. 1993) (despite Daubert, "Florida continues to adhere to the Frye test ...") (sex offender profile excluded); Brim v. State, 695 So.2d 268, 270 (Fla. 1997) ("It is clear that the DNA testing process consists of two distinct steps and that both steps must satisfy the requirements of Frye"); Hadden v. State, 690 So.2d 573, 577 (Fla. 1997) (child sexual abuse accommodation syndrome "testimony in child-abuse prosecutions must be subjected to a Frye test"; not generally accepted as a diagnostic tool).

Illinois. People v. Miller, 173 Ill.2d 167, 187, 670 N.E.2d 721, 731 (1996) ("Illinois follows the Frye standard for the admission of novel scientific evidence."), cert. denied, 520 U.S. 1157 (1997); People v. Lowitzki, 285 Ill. App.3d 770, 777, 674 N.E.2d 859, 863 (1996) ("[T]he admissibility of new scientific techniques must be evaluated under the Frye ‘general acceptance' standard. Although this standard has been superseded in federal court by the perhaps more liberal Federal Rules of Evidence ... , the Frye standard remains the appropriate standard in Illinois."), app. denied, 679 N.E.2d 383.

Kansas. State v. Colbert, 257 Kan. 896, 909, 896 P.2d 1089, 1097 (1995) (DNA profile statistics generally accepted); State v. Hill, 257 Kan. 774, 783, 895 P.2d 1238, 1245 (1995) ("Kansas has repeatedly applied Frye") (DNA-PCR admissible because generally accepted); State v. Warden, 257 Kan. 94, 113, 891 P.2d 1074, 1088 (1995) (facilitated communication (autistic child testimony against molester) not scientific evidence; therefore, Frye does not control).

Maryland. Goldstein v. State, 339 Md. 563, 573-77, 664 A.2d 375, 380-81 (1995) (principles underlying laser-based speed detection devices are generally accepted under Reed/Frye standard; Frye limited to theories and processes in general; no need for Frye hearing for every new device); United States Gypsum Co. v. Baltimore, 336 Md. 145, 182, 647 A.2d 405, 423 (1994) (asbestos evidence). See also Williams v. State, 342 Md. 724, 679 A.2d 1106 (1996) (DNA-PCR not covered by state statute; therefore, it must satisfy the Frye-Reed test).

Michigan. People v. Lee, 212 Mich. App. 228, 262, 537 N.W.2d 233, 249 n. 17 (1995) (applying Davis-Frye rule until Supreme Court changes) (DNA-PCR evidence would be admissible under the "more relaxed" Daubert standard because it is admissible under the "more rigorous" Davis-Frye standard), app. denied, 554 N.W.2d 12 (Mich. 1996).

Missouri. State v. Kinder, 942 S.W.2d 313 (Mo. 1996) ("[W]e hold that the [DNA] product rule is generally accepted in the scientific community ...."). See also State v. Huchting, 927 S.W.2d 411 (Mo. App. 1996) (DNA generally accepted under Frye), cert. denied, 118 S.Ct. 149 (1997).

Nebraska. State v. Carter, 246 Neb. 953, 984, 976, 524 N.W.2d 763, 783, 779 (1994) (per curiam) (DNA-PCR-DQA) statistical probability calculations not generally accepted, citing NAS Report; "[A] DNA match will not be admissible if it has not been accompanied by statistical probability evidence that has been calculated from a generally accepted method") ("[W]e decline to adopt the less demanding Daubert standard and reaffirm Frye as the standard for determining the admissibility of DNA evidence"); State v. Dean, 246 Neb. 869, 882, 884, 523 N.W.2d 681, 692-93 (1994) ("[N]otwithstanding that our rule 702 parallels the federal rule 702, Daubert does not apply to state court decisions. The increasing prevalence of expert evidence cautions against the admission of scientific evidence which is still the subject of dispute and controversy in the relevant scientific communities. ... We thus adhere to the Frye standard. ..."; laser trajectory analysis not a novel technique; "[A]iming a laser beam through bullet holes [in a mobile home] to reconstruct a bullet's path is no less reliable than inserting a dowel into a bullet hole to demonstrate its path"), cert. denied, 515 U.S. 1123 (1995).

New York. People v. Wernick, 89 N.Y.2d 111, 674 N.E.2d 322, 651 N.Y.S.2d 392 (1996) ("This Court has often endorsed and applied the well-recognized rule of Frye. ..."; neonaticide syndrome not generally accepted); People v. Wesley, 83 N.Y.2d 417, 424, 633 N.E.2d 451, 455, 611 N.Y.S.2d 97, 101 (1994) (Lifecodes DNA method generally accepted).

Pennsylvania. Commonwealth v. Crews, 536 Pa. 508, 518 n. 2, 640 A.2d 395, 400 n. 2 (1994) ("Daubert relaxes, somewhat, the impediments to admission of novel scientific evidence. ... Whether or not the rationale of Daubert will supersede or modify the Frye test in Pennsylvania is left to another day").

Washington. State v. Copeland, 130 Wash.2d 244, 261, 922 P.2d 1304, 1315 (1996) (en banc) ("reaffirm our adherence to the Frye standard where novel scientific evidence is concerned"); Reese v. Stroh, 128 Wash. 2d 300, 308, 907 P.2d 282, 286 (1995) (en banc) (expert testimony in a civil case concerning causation "does not implicate Frye"; "While we acknowledge the invitation to adopt the federal test for reliability under Fed. R. Evid. 702 as outlined in Daubert, we decline to do so in this case"); State v. Riker, 123 Wash. 2d 351, 360 n. 1, 869 P.2d 43, 48 n. 1 (1994) (en banc) (battered person syndrome generally accepted but only in a long-term relationship; court will "continue to adhere to the view that the Frye analysis is a threshold inquiry to be considered in determining the admissibility of evidence under ER 702"; however, "many of the ‘general observations' made [in Daubert] may be of use to trial judges in making the threshold Frye determination").

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FORENSIC SCIENCE COMMUNICATIONS     OCTOBER 1999   VOLUME 1   NUMBER 3