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Modern experts have powerful tools and technologies at their disposal. As powerful as these are, however, they are used by human beings — fallible creatures who are sometimes undertrained and overworked. The expert might be employing a technique that has been thoroughly validated; but if he uses sloppy test procedures, the test outcome can easily be flawed. If an expert in a civil action wants to closely scrutinize a part of the allegedly defective product, the expert can use a scanning electron microscope. An SEM can produce magnifications exceeding 200,000 times. If an expert in a criminal case wants to determine whether there is a link between a suspect and a blood stain found at a murder scene, the expert can resort to short tandem repeat DNA testing. The testing might yield a random match probability in the trillions. At common law, the prevailing view was that the required foundation for a scientific test includes a showing that at the time of the test, the expert followed correct procedures. In the words of the Utah Supreme Court, even after determining the expert relied on an acceptable theory or technique, “[t]he trial [judge] must still make a separate determination that … the scientific principles or techniques have been properly applied to the facts of the particular case.” State v. Rimmasch, 755 P.2d 388, 398 n. 7 (Utah 1989). Two early DNA cases are illustrative. In a highly publicized New York trial court decision, People v. Castro, 545 N.Y.S.2d 985 (Sup. Ct. 1989), the court acknowledged that “there is a general acceptance of the theory underlying DNA identification.” Likewise, in a later Minnesota appellate case , State v. Schwartz, 447 N.W.2d 422 (Minn. 1989), the court asserted that “DNA typing is generally acceptable.” Yet, in both cases, the courts ultimately ruled the DNA testimony inadmissible for the stated reason that the proponent had failed to establish that the analysts followed correct scientific procedures on the specific occasion when they conducted the DNA test in question. RELIABILITY There is a strong policy case for the traditional view mandating proof of proper test procedures. To begin with, the use of correct test procedures is one of the most fundamental guarantees of the reliability of the evidence. The expert presumably has chosen the scientific theory or technique because there has been extensive research validating the theory or technique. When the original researchers conducted their experiments, they controlled certain variables. For example, if a toxicologist experimented with the use of a gas chromatograph to identify a particular poison, throughout the experiments the toxicologist would ensure that the same carrier gas was used and that the chamber was maintained at the same temperature. Suppose that at the time of the later forensic test, the analyst employed the same make and model of gas chromatograph. However, the analyst neglected to use the same gas or monitor the temperature. The proponent cannot rely on the prior research to demonstrate the reliability of the outcome of the forensic test unless the analyst duplicates the conditions that were obtained during the original research. Thus, it is imperative that the analyst follows correct test procedure in the sense that he replicates those conditions. Moreover, the proficiency studies conducted in the forensic sciences suggest that improper test procedure is the Achilles heel of many expert techniques. In the 1970s, the laboratory proficiency testing program tested more than 230 laboratories. The program not only measured the margin of error, but when there were errors, the researchers followed up to identify the cause of the errors. The final report repeatedly lists the analyst’s use of incorrect test procedure that was a contributing cause to inaccurate test results. J. Peterson, E. Fabricant and K. Field, “Crime Laboratory Proficiency Testing Research Program,” 203-06, 223, 230, 239, 258 (1978). In fact, the report lists that factor more frequently than any other cause. Likewise, in its study of the proficiency of drug-testing laboratories, the Centers for Disease Control and Prevention has pointed to unsound test protocol as a cause of flawed test results. Hansen, Caudill and Boone, “Crisis in Drug Testing: Results of CDC Blind Study,” 253 J.A.M.A. 2382 (1985). TRADITIONAL VIEW OVERTURNED Although there is a strong case for treating a showing of test procedure as a required part of the foundation for expert testimony, the question arises over whether the common-law view is still good law. Prior to the 2000 amendment to Federal Rule of Evidence 702, Article VII did not contain any language that purported to codify the common-law rule. That omission makes it tenable to argue that the enactment of the federal rules overturned the traditional view. See Harmon, “How Has DNA Evidence Fared? Beauty Is in the Eye of the Beholder,” 1 Expert Evid. Rep. 149 (Feb. 1990). The key to the argument is the Supreme Court’s treatment of Federal Rule of Evidence 402 in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). In Daubert, the Court addressed the question of whether the traditional general acceptance test still governed the admissibility of scientific testimony in federal court. The traditional test was enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Daubert Court acknowledged that before the adoption of the federal rules, the Frye test was “the dominant standard.” However, the Court noted that the statutory text of the federal rules did not include any language that could reasonably bear the interpretation that it prescribed a general acceptance test. The Court then quoted Rule 402:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Rule 402 makes no mention of case or decisional law, implying that the rules implicitly abolish uncodified, categorical exclusionary rules. After citing Rule 402, the Court quoted an article written by the late Professor Edward Cleary, the reporter for the committee that drafted the rules. In his article, Cleary asserted that “[i]n principle, under the Federal Rules no common law of evidence remains.” Since Frye was a creature of case law, the rules superseded Frye. The same attack can be mounted on the common-law view that the proponent of expert testimony must make an affirmative showing that the expert followed correct test procedure on the occasion when the expert applied the technique to assess the evidence in the instant case. Indeed, that common-law view was not as well settled as Frye. The argument ran that if the Frye rule could not withstand a Rule 402 attack, the requirement for a foundational showing of proper test procedure had also been superseded. There were indications that even non-Federal Rule of Evidence jurisdictions were reconsidering the common-law requirement. By way of example, in People v. Farmer, 47 Cal. 3d 888 (1989), the California Supreme Court distinguished “the fundamental methodology” from “the degree of professionalism with which it is applied.” In the court’s words, “Careless testing affects the weight of the evidence and not its admissibility.” BACK TO THE BEGINNING Fortunately, there is now a countertrend. Effective Dec. 1, 2000, Federal Rule of Evidence 702 was amended to impose a requirement that the proponent of expert testimony demonstrate that “the testimony is the product of reliable principles and methods, and … the witness has applied the principles and methods reliably to the facts of the case.” That additional language is broad enough to codify the traditional view. The countertrend is also surfacing in non-Federal Rule of Evidence jurisdictions. As previously stated, in the late 1980s the California Supreme Court had used language that called the viability of the traditional view into question in that state. However, in People v. Venegas, 18 Cal. 4th 47 (1998), the court clarified its position. With some exceptions, the Venegas court affirmed that the proponent of expert testimony must establish that the expert followed proper test procedure. The court referred to the showing of correct test procedure as a separate “prong” of the required foundation. However, neither Venegas nor the 2000 amendment to Rule 702 ends the controversy. There are numerous Federal Rule of Evidence states that have a version of Rule 402 similar to Federal Rule 402 and a version of 702 that has not yet been amended to conform to the current version of Rule 702. In those states, it is still tenable for the proponent to argue that the state’s adoption of a code patterned after the federal rules overturned the common-law view. In predominantly common-law jurisdictions such as Massachusetts, the state courts can adopt the traditional view as a matter of policy. Moreover, some Federal Rule of Evidence jurisdictions retained the courts’ common-law power to formulate and enforce uncodified exclusionary rules. For instance, in its order promulgating the rules in that state, the Minnesota Supreme Court explicitly reserved the common-law power to revise evidence law. The Oregon and West Virginia drafters specifically referred to decisional law as a source of evidence doctrine. In those states, as in Massachusetts, the courts can choose to follow the common-law view if they believe that it is desirable to mandate a showing of correct test procedure. However, in the states in which the common-law judicial power no longer exists, formal action is arguably necessary to amend the jurisdiction’s version of Article VII. The author is a professor of law at the University of California, Davis, and co-author of Scientific Evidence (3d ed. 1999). If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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