State v. Coon

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

*404 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 *405 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 plaintiffs 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 *406 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. State 20 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. Alberico 24 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.l of the court’s opinion.

. 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993).

. Op. at 390 (quoting Daubert, 509 U.S. at 592-93 , 113 S.Ct. 2786 ).

. 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?).... [0]ur reference here is to evidentiary reliability — that is, trustworthiness. In a case involving scientific evidence, eviden-tiary reliability will he based upon scientific validity.

509 U.S. at 590 n. 9, 113 S.Ct. 2786 .

. 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 ah, 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. Gottes-man, From Barefoot to Daubert to Joiner: Triple Play or Double Eiror?, 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. LJ.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.”).

. 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.

. See Faigman et ah, 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.").

. Kesan, supra note 4, at 2037. Michael Gottes-man notes that, in the wake of the Supreme Court’s decision in General Electric Co. v. Joiner, 522 U.S. 136 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (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.

. Op. at 399. 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”).

. Op. at 399.

. 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.

. 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.”).

. See Gottesman, supra note 4, at 777-78 C'[T]he issue of general causation — whether substance A is capable of causing disease B — does not vary from case to case.... ”).

. Faigman et at, supra note 4, at 1821.

. Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128, 1130 (9th Cir.1991) (quoting Reed v. State, 283 Md. 374 , 391 A.2d 364, 367 (1978)), vacated on other grounds, 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (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 , 139 L.Ed.2d 508 (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.

. See Faigman et al., supra note 4, at 1822 (discussing the smokingdung cancer example).

. 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 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997), for the proposition that Daubert rulings should be reviewed only for abuse of discretion. See Smith v. Belle Bonfils Mem'l Blood Ctr., 976 P.2d 344, 347 (Colo.App.1998); Monette v. Clinch, C8-98-329, 1998 WL 481892 , at *1 (Minn.App. Aug. 18, 1998); Yamaha Motor Co. v. Arnoult, 114 Nev. 233 , 955 P.2d 661, 666 (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.

. Taylor, 889 P.2d at 332 (footnote omitted).

. 197 W.Va. 62 , 475 S.E.2d 62 (1996).

. Id. at 67, 475 S.E.2d 62 (quoting Gentry v. Mangum, 195 W.Va. 512 , 466 S.E.2d 171, 174 (1995)).

. 476 P.2d 474 (Alaska 1970).

. 674 P.2d 792 (Alaska App.1983), rev’d on other grounds, 718 P.2d 129 (Alaska 1986).

. See Pulakis, 476 P.2d at 479 (polygraph examinations); Contreras, CIA P.2d at 799 (hypnosis).

. Op. at 398.

. Op. at 398-399 (quoting 116 N.M. 156 , 861 P.2d 192 (1993)).

. Id. (quoting 861 P.2d at 205 ).

. 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 .