'General acceptance' test for scientific evidence retained in California.

Declining to follow the lead of the U.S. Supreme Court, the high court of California ruled in October that judges in the state's courts will continue to use a restrictive approach to determining whether scientific evidence is admissible at trial. (People v. Leaby, No. S035250, 1994 Cal. LEXIS 5373 (Cal. Oct. 27, 1994).)

In a 6-1 decision, the California Supreme Court said it saw no reason to abandon the "general acceptance" standard of admissibility in favor of the more liberal approach adopted by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (113 S. Ct. 2786 (1993).)

In Daubert, the Court held that the Federal Rules of Evidence supersede the "general acceptance" test, known as the Frye standard, which had been used in federal courts since 1923. (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).)

The justices said that under the federal rules--which generally provide that evidence is admissible if it is relevant and would be helpful to the jury--expert scientific testimony may be admitted if it is based on scientifically "valid" or "reliable" methodologies. They rejected the argument that novel scientific evidence must be generally accepted in the scientific community to be admitted.

But the California court held firm to the state's equivalent of the Frye case, People v. Kelly. (130 Cal. Rptr. 144 (Cal. 1976).) The majority said that the Kelly decision "set forth at length its reasons for adopting a more cautious approach to the admission of new scientific evidence. Nothing occurring in the years since Kelly was decided requires us to reconsider that conclusion."

The court acknowledged that the California Evidence Code does not include general acceptance as a criterion for admissibility. "Were we approaching the question afresh," Chief Justice Malcolm Lucas wrote for the court, "we might reasonably conclude, by analogy to Daubert, that the framers of the evidence code did not intend to adopt a general acceptance standard."

Legislative Acquiescence

But Lucas noted that the court decided Kelly 11 years after the evidence code was adopted and "found Frye compatible with those provisions." He also said the lack of action by state lawmakers to do away with the general acceptance test "may be presumed to signify legislative acquiescence in our Kelly decision."

The court affirmed a lower-court decision overturning the drunk-driving conviction of William Michael Leahy. After he was stopped by a police officer, Leahy failed a horizontal gaze nystagmus (HGN) test, which measures eye movement. The court found the test to be a new scientific technique and said the prosecution had not shown that it is generally accepted within the scientific community at this time.

Although the decision arose from a criminal case, it will govern evidence disputes in California civil cases as well.

"It is disappointing that California has adhered to an exclusionary rule that is contrary to modern concepts of admissibility," said ATLA President Larry Stewart. "The truth is best served when evidence is subject to cross-examination and jury decision."