# State v. Gleason > Idaho Supreme Court · December 22, 1992 · 123 Idaho 62 URL: https://www.frixlaw.com/law-library/cases/9845223 ## Case - **Full name:** STATE of Idaho, Plaintiff-Respondent, v. Danny R. GLEASON, Defendant-Appellant - **Court:** Idaho Supreme Court - **Decided:** December 22, 1992 - **Citations:** 123 Idaho 62; 844 P.2d 691; 1992 Ida. LEXIS 182 - **Precedential status:** Published - **Opinion:** Concurrence by Bistline - **Judges:** McDevitt, Bakes, Johnson, Trout - **Cited by:** 95 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9845223 ## Opinion text *67 BISTLINE, Justice, concurring in the result in Part I. This one justice 3 concurs with the majority to the extent of the holdings that: 1) HGN evidence is admissible in evidence as an indicator of intoxication; 2) evidence elicited by the defendant may not be challenged by him/her on appeal; and 3) the insertion of the word “judgment” in the jury instruction in issue was not reversible error. However, I can only concur in the result in Part I of the majority’s opinion because I disagree with the majority’s abandonment of the test for scientific reliability, which test was set forth in State v. Garrett, 119 Idaho 878, 880 , 811 P.2d 488, 490 (1991). I am especially troubled about the total lack of guidance given to the bench and bar relative to determining whether evidence is scientifically reliable enough to be admitted into evidence under I.R.E. 702. First, the majority’s statement about the proper measure of the scientific reliability of evidence is not necessary to the decision. As the majority notes, Garrett “is authoritative on the issue of the scientific reliability of HGN evidence.” The question whether HGN evidence is scientifically reliable having already been resolved, the majority’s statement that “the appropriate test for measuring the scientific reliability of evidence is I.R.E. 702[ ]” is dicta. Second, the majority’s bare statement that I.R.E. 702 is the appropriate test provides no guidance to the bench and bar as to how to determine scientific reliability. I.R.E. 702 only states that a qualified witness may testify as to scientific, technical, or other specialized knowledge if that testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Questions that come to mind include: What level of scientific reliability, if any, is required before evidence will assist the trier of fact? What constitutes scientific reliability? How reliable does scientific evidence have to be before it is admissible? On whose scale do we measure the amount of reliability? What unit of measure is being used? How can trial judges hope to apply a uniform test for reliability when neither I.R.E. 702 nor the Court provides any guidance? On what foundational basis are judges and lawyers considered better equipped to determine scientific reliability than is the scientific community? The majority does not enlighten us. Although the majority seems to assume the determination of scientific reliability under I.R.E. 702 has been clearly established, in fact a review of the cases interpreting Federal Rule of Evidence 702, or an analogous state provision, shows there is significant disagreement as to the effect of Frye on Rule 702. See Mustafa v. United States, 479 U.S. 953 , 107 S.Ct. 444 , 93 L.Ed.2d 392 (1986) (White, J., joined by Brennan, J., dissenting on denial of petition for writ of certiorari on the ground that the Court should resolve the split in authority over the applicability of the Frye test to a rule 702 analysis). Some courts have rejected the Frye test in favor of a broad admissibility standard. See, e.g., State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990); Kelly v. State, 792 S.W.2d 579, 584-85 (Tex.App.1990). Some courts have adopted, as did Garrett , the Frye test as part of their rule 702 analysis. See, e.g., United States v. Boise, 916 F.2d 497, 503 (9th Cir.1990); United States v. Two Bulls, 918 F.2d 56 , 60 n. 7 (8th Cir.1990); United States v. Smith, 869 F.2d 348, 353 (7th Cir.1989). Some other courts have constructed a less-stringent version of the Frye test to use in its F.R.E. 702 analysis but háve not abandoned it altogether. See United States v. Gould, 741 F.2d 45, 48-49, n. 2 (4th Cir.1984); United States v. Downing, 753 F.2d 1224, 1237-39 (3d Cir. 1985). In short there is a conflict among the state and federal courts as to the interplay between rule 702 and the Frye test. All of these cases, it should be emphasized, *68 interpret the same language at issue here. Which of these views, if any, does the majority suggest that the trial judges of this state are to follow? 4 Moreover, Idaho law is not clear as to the effect of Frye on I.R.E. 702. In State v. Iwakiri, 106 Idaho 618, 623-24 , 682 P.2d 571, 576-77 (1984), a case decided prior to the adoption of the Idaho Rules of Evidence, we discussed the Frye rule but then adopted a case by case approach limited to the question of the admissibility of hypnotically induced testimony. (In that sense, Iwakiri was really a witness competency case, not an admission of expert testimony case.) In State v. Crea, 119 Idaho 352, 355 , 806 P.2d 445, 458 (1991), a case involving the admissibility of alcohol breath tests from an “Intoximeter 3000” with the Taguchi cell deactivated, we cited to Iwakiri in a footnote and then “decline[d] to adopt the Frye criteria as the basis of scientifically derived evidence as relates to the issues presented in this appeal.” (Emphasis added.) We then went on to hold that the Intoximeter 3000 evidence in that case was admissible, in part because it had “gained scientific acceptance.” 119 Idaho at 355, 806 P.2d at 458 . (In other words, the evidence was admissible under the Frye test.) Recently, this Court over-read Crea’s narrow holding and implied that Crea had rejected the Frye altogether. State v. Rodgers, 119 Idaho 1047, 1049 , 812 P.2d 1208, 1210 (1991). In discussing Frye, the Court in Rodgers did not even mention Garrett , which had been decided only one month earlier. The majority went on to hold that the admission of blood splatter evidence under I.R.E. 702 was not an abuse of the trial court’s discretion “[gjiven the widespread acceptance of this evidence of other courts and the fact that Rule 702 favors admissibility of expert testimony[.]” 119 Idaho at 1051, 812 P.2d at 1212 . How a trial court is to determine the admissibility of evidence which has not gained the widespread acceptance of other courts was not made clear. The opinions discussed above are not models of clarity and provide no real guidance to the bench and bar as to how to determine whether scientific evidence is reliable enough to permit its admission. Today’s opinion does nothing to clarify the law. As I have noted previously, my concern is not so much that Frye is rejected but that [i]f Frye is rejected it must be replaced with something. Otherwise, every form of “scientific” evidence, even evidence that does not deserve that label, will be admissible for the jury’s consideration. Such prejudice in a criminal trial is improper. State v. Rodgers, 119 Idaho 1041, 1054-55 , 812 P.2d 755, 768-69 (1991) (Bistline, J., dissenting). At this juncture it appears that the law would be better served by adhering to the familiar Frye rule rather than sending the bench and bar down the dismal road of litigation without a road map. How a supreme court decides to govern the admission of scientific evidence is an important question which should be carefully considered and decided only after full briefing by the parties. Here the majority, having raised the question on its own volition, announces an ill-defined rule which leaves the reader without any clue as to the applicable ratio decidendi. . An appellation bestowed on Bistline, J. by the Supreme Court of the United States in referring to a view "[o]ne justice” espoused. Lankford v. Idaho, — U.S.-,-, 111 S.Ct. 1723, 1728 , 114 L.Ed.2d 173 (1991). . Fortunately for the federal courts, it appears that the United States Supreme Court has recently accepted review of a case in order to resolve the conflict between federal circuits. Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128 (9th Cir.1991) cert. granted, — U.S.-, 113 S.Ct. 320 , 121 L.Ed.2d 240 (1992). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9845223. Public record. Not legal advice.