New York Law Review

Tag: Frye Standard

  • Reeps v. BMW of North America, LLC, 115 A.D.3d 432 (1st Dept. 2014): Admissibility of Expert Testimony in Toxic Tort Cases

    115 A.D.3d 432 (1st Dept. 2014)

    Expert testimony on causation in toxic tort cases must be based on methodologies generally accepted as reliable within the scientific community, particularly regarding exposure levels.

    Summary

    In a personal injury case alleging that in utero exposure to gasoline vapor caused birth defects, the court addressed the admissibility of expert testimony concerning causation. The plaintiff’s experts relied on the mother’s reported symptoms (headaches, nausea, dizziness) to estimate the level of gasoline vapor exposure. The court held that this methodology was not generally accepted within the scientific community, and therefore, the expert testimony was inadmissible under the Frye standard. The court distinguished the methodology from the accepted “odor threshold” analysis, where exposure levels are estimated based on the minimum concentration detectable by smell. The Appellate Division affirmed the trial court’s preclusion of the expert testimony.

    Facts

    Debra R. drove a BMW 525i, which had a defective fuel hose, emitting a gasoline odor. She smelled gasoline during her pregnancy with Sean R. After the child was born with severe mental and physical disabilities, the parents sued BMW. The plaintiff offered expert testimony from Dr. Frazier and Dr. Kramer, who concluded that the gasoline vapor caused the child’s disabilities. They based their conclusions on the symptoms Debra R. experienced and studies of gasoline vapor exposure. BMW challenged the methodology used by these experts.

    Procedural History

    The trial court initially denied BMW’s motion for summary judgment, but later granted BMW’s motion to preclude the expert testimony of Dr. Frazier and Dr. Kramer, finding the methodologies were not generally accepted in the scientific community. The Appellate Division affirmed this decision, and certified a question to the New York Court of Appeals.

    Issue(s)

    Whether the trial court properly precluded expert testimony of Dr. Frazier and Dr. Kramer regarding causation, based on their methodology for determining gasoline vapor exposure.

    Holding

    Yes, because the methodology used by the plaintiff’s experts to estimate gasoline vapor exposure, based on reported symptoms, was not generally accepted within the scientific community, and therefore, the expert testimony was inadmissible under the Frye standard.

    Court’s Reasoning

    The court applied the Frye standard, which requires that expert testimony be based on methods generally accepted in the relevant scientific community. The court found that the experts’ methodology, which extrapolated exposure levels from reported symptoms, lacked a foundation in established scientific principles. The court distinguished this methodology from the “odor threshold” approach, which is accepted and relies on the lowest concentration of a substance detectable by smell. The experts failed to identify scientific literature or studies that validated their approach of working backward from symptoms to calculate exposure. The court also emphasized that “At a minimum, … there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the kind of harm that the plaintiff claims to have suffered.” The court noted that the smell of a substance is not the same as a toxic level of exposure. The court noted “we have not dispensed with the requirement that a causation expert in a toxic tort case show, through generally accepted methodologies, that a plaintiff was exposed to a sufficient amount of a toxin to have caused his injuries”.

    Practical Implications

    This case underscores the critical importance of the Frye standard in New York and the need for scientific reliability in expert testimony, particularly in toxic tort litigation. Attorneys must ensure that their experts’ methodologies are widely accepted by the scientific community. Expert opinions in toxic tort cases, to be admissible, must demonstrate (1) exposure, (2) the toxin’s capacity to cause the injury, and (3) sufficient exposure to the toxin. Reliance on subjective symptoms alone to determine exposure levels is insufficient, and experts must employ established methods for determining exposure, such as measuring the substance’s concentration using the odor threshold. This case is important because it emphasizes the importance of grounding expert testimony in established scientific methodologies, and reinforces the significance of general acceptance in the scientific community as a prerequisite for admissibility.

  • People v. LeGrand, 8 N.Y.3d 449 (2007): Admissibility of Expert Testimony on Eyewitness Identification

    People v. LeGrand, 8 N.Y.3d 449 (2007)

    Where a case hinges on the accuracy of eyewitness identifications with little corroborating evidence, excluding expert testimony on eyewitness reliability, if relevant, generally accepted, and beyond the ken of the average juror, is an abuse of discretion.

    Summary

    Joaquin Liriano was murdered in 1991. The case stalled until 1998 when the defendant, LeGrand, was identified as a suspect based on a composite sketch made shortly after the crime. The People’s case rested solely on eyewitness identifications made nearly seven years after the crime. LeGrand sought to introduce expert testimony regarding factors affecting eyewitness reliability, which the trial court precluded after a Frye hearing. The Court of Appeals reversed, holding that the exclusion of the expert testimony was an abuse of discretion given the lack of corroborating evidence and the centrality of eyewitness identification.

    Facts

    Joaquin Liriano was stabbed to death in Manhattan in June 1991, and his assailant fled. Four people witnessed the attack and created a composite sketch. Two years later, LeGrand was identified as a possible suspect because he resembled the sketch. The case remained dormant until 1998, when LeGrand was arrested for burglary. The authorities then located the witnesses; one identified LeGrand as the killer, two tentatively identified him, and two could not identify him. There was no forensic or physical evidence connecting LeGrand to the stabbing.

    Procedural History

    LeGrand was charged with second-degree murder in 1999. His first trial in 2001 ended in a mistrial. Prior to his second trial, LeGrand moved to introduce expert testimony on eyewitness identification. The trial court conducted a Frye hearing and precluded the testimony. The jury found LeGrand guilty. The Appellate Division affirmed. The Court of Appeals reversed and ordered a new trial.

    Issue(s)

    Whether the trial court erred in precluding expert testimony on the reliability of eyewitness identifications after determining that the proposed testimony was based on novel scientific principles not generally accepted by the relevant scientific community, where the case turned on the accuracy of eyewitness identifications and there was little or no corroborating evidence.

    Holding

    Yes, because where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

    Court’s Reasoning

    The Court of Appeals recognized an emerging trend of admitting expert psychological testimony on eyewitness identification, noting that such testimony can provide much-needed guidance to juries. The Court emphasized the trial court’s discretion in determining whether jurors would benefit from the specialized knowledge of an expert witness, considering the centrality of the identification issue and the existence of corroborating evidence.

    The Court referenced Frye v. United States, emphasizing that the thing from which a deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. The Court distinguished its prior holdings in People v. Lee and People v. Young, emphasizing that, unlike those cases, there was no corroborating evidence connecting LeGrand to the crime. The Court found that the expert’s testimony regarding the correlation between confidence and accuracy, the effect of post-event information, and confidence malleability met the Frye standard, while the effect of weapon focus did not. The Court emphasized, “Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered [and courts] may take judicial notice of reliability of the general procedure.”

    Ultimately, the Court concluded that the exclusion of the expert testimony was an abuse of discretion, warranting a new trial. However, it reiterated that the admissibility of such evidence also depends upon the existence of sufficient corroborating evidence to link the defendant to the crime. In the event sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting defendant.

  • People v. Wernick, 89 N.Y.2d 111 (1996): Admissibility of Expert Testimony and the Neonaticide Defense

    89 N.Y.2d 111 (1996)

    When a defendant asserts an insanity defense, CPL 60.55(1) permits psychiatric experts to explain their diagnosis, but it does not automatically obviate the need for a Frye hearing to determine the reliability of novel scientific evidence like a neonaticide “syndrome.”

    Summary

    Stephanie Wernick was convicted of criminally negligent homicide after killing her newborn infant. On appeal, Wernick argued the trial court erred by precluding expert testimony about a neonaticide “syndrome” without a Frye hearing, claiming CPL 60.55(1) guarantees the admissibility of any explanation clarifying a psychiatric expert’s opinion. The New York Court of Appeals affirmed, holding that while CPL 60.55(1) allows experts to explain their diagnoses, it doesn’t eliminate the need for a Frye hearing to assess the reliability of novel scientific evidence. The court found the defense was attempting to introduce a novel theory without establishing its general acceptance in the relevant scientific community.

    Facts

    Stephanie Wernick gave birth to a baby boy in a college dormitory bathroom and subsequently asphyxiated the infant. She then enlisted a friend to help dispose of the body. Wernick was charged with manslaughter. The defense planned to present expert testimony arguing that Wernick suffered from a brief reactive psychosis due to her denial of the pregnancy, aligning with a proposed neonaticide “syndrome.”

    Procedural History

    The People requested a Frye hearing to assess the reliability of the neonaticide syndrome testimony. The trial court denied the request initially, planning to rule on the admissibility of the expert testimony as the trial progressed. The trial court allowed testimony regarding defendant’s denial of pregnancy and brief reactive psychosis but precluded experts from detailing a specific psychiatric profile of women who kill their newborns. The Appellate Division affirmed Wernick’s conviction. A dissenting Justice at the Appellate Division granted permission to appeal, arguing for a new trial after a Frye hearing.

    Issue(s)

    Whether CPL 60.55(1) automatically allows psychiatric experts testifying on an insanity defense to present any explanation clarifying their opinion, thereby precluding the need for a Frye hearing to determine the reliability of the underlying scientific basis for that opinion, such as a novel “neonaticide syndrome”?

    Holding

    No, because CPL 60.55(1) does not eliminate the requirement that novel scientific evidence, even when offered to explain a psychiatric expert’s opinion, must be shown to be generally accepted in the relevant scientific community under the Frye standard before it can be admitted.

    Court’s Reasoning

    The Court of Appeals reasoned that regardless of how the defense characterized the evidence (as a “pattern,” “profile,” or “syndrome”), the defense was attempting to introduce a pattern of behavior not generally recognized in the medical community. The court emphasized the importance of the Frye standard, which requires that expert testimony be based on scientific principles or procedures that have gained general acceptance in the relevant field. The court noted that CPL 60.55(1) was enacted to modify the common-law Keough rule, which limited expert testimony to facts in evidence and personal observation, but it does not completely eliminate the need to assess the reliability of the evidence underlying the expert’s opinion. Citing People v. Stone, the court stated that CPL 60.55 represents a balance between medical soundness and legal admissibility. While experts are permitted to explain their diagnoses, the court must ensure a legally competent basis for the expert’s opinion. According to the court, the statute requires that a psychiatric expert “be permitted to make any explanation reasonably serving to clarify his [or her] diagnosis and opinion”. Allowing experts to present publications of nontestifying experts about a theoretical profile without a reliability foundation would be improper. The court found that the trial court properly precluded the ultimate expert testimony regarding the neonaticide syndrome because the defense had not established a sufficient foundation for its reliability. The court explicitly rejected the dissent’s reading of CPL 60.55(1) as creating a broad exception to standard evidentiary rules.

  • People v. Angelo, 88 N.Y.2d 217 (1996): Admissibility of Polygraph Evidence in Criminal Trials

    People v. Angelo, 88 N.Y.2d 217 (1996)

    Polygraph test results are inadmissible as evidence in New York criminal trials because they are not generally accepted within the scientific community as reliable.

    Summary

    Angelo, a nurse, was convicted of murder and assault for injecting patients with a neuromuscular blocking agent. At trial, he argued a mental illness prevented him from understanding the risk of his actions. He sought to introduce polygraph results, arguing they supported his expert’s diagnosis. The trial court excluded the polygraph evidence, citing its unreliability. The Court of Appeals affirmed, holding that polygraph results are inadmissible unless generally accepted as reliable in the scientific community, which Angelo failed to demonstrate. This case reinforces the application of the *Frye* standard in New York, requiring scientific reliability for novel scientific evidence.

    Facts

    Angelo, a nurse, injected seven patients with a neuromuscular blocking agent, leading to six deaths. He claimed a dissociative disorder prevented him from understanding the risk his actions posed to the patients. Angelo sought to prove that he had feelings of inadequacy, and injected patients so he could then participate in their resuscitation, unaware that his injections caused their distress.

    Procedural History

    Angelo was convicted of murder, manslaughter, criminally negligent homicide, and assault. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court erred in prohibiting Angelo’s expert from testifying that his conclusions were based, in part, on the results of Angelo’s polygraph examination.

    Holding

    No, because polygraph test results are not generally accepted by the scientific community as reliable and therefore are inadmissible as evidence.

    Court’s Reasoning

    The Court of Appeals upheld the trial court’s decision to exclude the polygraph evidence. The Court reasoned that while experts can rely on out-of-court evidence, that evidence must be “of a kind accepted in the profession as reliable in forming a professional opinion” or “comes from a witness subject to full cross-examination on the trial” (citing People v. Sugden, 35 N.Y.2d 453, 460-461). This incorporates the *Frye* standard, requiring general acceptance of the scientific procedures and methodology. Because Angelo failed to demonstrate that polygraph test results meet this standard, the evidence was properly excluded.
    Specifically, the Court stated, “Because defendant did not demonstrate that polygraph test results are generally accepted by the scientific community as reliable, County Court did not err in excluding defendant’s polygraph results.”
    The court also noted that Angelo did not properly preserve his argument that a *Frye* hearing should have been held, as he did not definitively request such a hearing or argue that the scientific consensus had changed since previous rulings deeming polygraph evidence inadmissible.
    Finally, the Court rejected Angelo’s argument that the validity of the test results was not at issue, clarifying that because the polygraph was offered to prove the honesty of Angelo’s belief, its probative value depended on the reliability of the test results.

  • People v. Wesley, 83 N.Y.2d 417 (1994): Admissibility of Novel Scientific Evidence

    83 N.Y.2d 417 (1994)

    Expert testimony based on novel scientific principles is admissible only after the underlying principle or procedure has gained general acceptance in its specified field, as determined by the Frye standard.

    Summary

    In People v. Wesley, the New York Court of Appeals addressed the admissibility of DNA profiling evidence, a novel scientific technique at the time. The defendant was convicted of murder, rape, and other crimes. The prosecution presented DNA evidence linking the defendant to the crime scene. The court affirmed the conviction, holding that DNA profiling evidence was generally accepted as reliable by the relevant scientific community in 1988 when the Frye hearing occurred, and a proper foundation was laid at trial. The Court emphasized that the Frye test, regarding general acceptance, is distinct from foundation issues relating to specific procedures used in the case.

    Facts

    Helen Kendrick, a 79-year-old woman, was found murdered in her apartment. The investigation focused on George Wesley, a client of the same social services organization. Caseworkers found bloodstained clothing in Wesley’s apartment. Wesley initially denied knowing Kendrick but later admitted to visiting her. He gave conflicting accounts of how his shirt became bloodied and offered an implausible explanation for Kendrick’s injuries. Microscopic analysis revealed fibers from Kendrick’s apartment on Wesley’s clothing and vice versa. DNA comparison was made of a bloodstain taken from defendant’s T-shirt, hair follicles taken from the deceased and blood drawn from the defendant, indicating a match between the blood stain and the victim’s DNA.

    Procedural History

    The Albany County Court convicted Wesley of second-degree murder, first-degree rape, attempted first-degree sodomy, and second-degree burglary. Prior to trial, a Frye hearing was held to determine the admissibility of DNA evidence. The trial court ruled the evidence admissible, and the Appellate Division affirmed the conviction. Wesley appealed to the New York Court of Appeals.

    Issue(s)

    Whether DNA profiling evidence is admissible in New York State under the Frye standard, requiring general acceptance in the relevant scientific community.

    Holding

    Yes, because DNA profiling evidence was generally accepted as reliable by the relevant scientific community at the time of the Frye hearing, and a proper foundation was established at trial.

    Court’s Reasoning

    The Court applied the Frye standard, stating that expert testimony based on scientific principles is admissible only after the principle has gained general acceptance in its field. The Court noted that while the procedure doesn’t need to be unanimously endorsed, it must be generally accepted as reliable. Expert testimony presented at the Frye hearing supported the acceptance of DNA profiling evidence. The Court emphasized the distinction between the Frye test and the foundational requirements for admitting specific evidence. The Frye test addresses the general reliability of the scientific method, while foundation concerns the specific procedures used in the case. The court found Lifecodes’ procedures to be generally accepted. Challenges to population studies used for statistical analysis of DNA matches go to the weight of the evidence, not its admissibility, and are to be decided by the jury. The Court further noted that the modern trend in evidence law moves away from imposing special tests on scientific evidence and toward using traditional standards of relevancy and expertise. A concurring opinion argued that the prosecution failed to demonstrate that Lifecodes’ protocols for determining a match were generally accepted, emphasizing the subjectivity of visual matching techniques. However, the majority found that visual matching was an accepted procedure at the time. Chief Judge Kaye, concurring in result only, argued for a stricter application of the Frye standard, particularly regarding the procedures used by Lifecodes. Kaye found the DNA evidence should have been excluded. However, she concurred in the affirmance of the conviction, finding the error harmless given the other evidence against Wesley.

  • People v. Mooney, 76 N.Y.2d 824 (1990): Admissibility of Expert Testimony on Eyewitness Identification

    People v. Mooney, 76 N.Y.2d 824 (1990)

    The decision to admit expert testimony regarding the reliability of eyewitness identification rests within the sound discretion of the trial court, and will not be disturbed unless there is an abuse of discretion.

    Summary

    The New York Court of Appeals affirmed a lower court decision denying the admission of expert testimony on eyewitness identification. The court held that the trial court did not abuse its discretion in finding the proposed testimony unreliable, cumulative, and not beyond the ken of the jury. The dissent argued that the trial court applied incorrect legal standards and failed to properly assess the specific facts of the case, thereby signaling an overly broad deference to trial court discretion and ignoring growing research on the reliability of eyewitness testimony. The dissent emphasized the emerging trend of accepting such expert testimony and its potential to clarify misconceptions held by jurors.

    Facts

    The defendant sought to introduce expert testimony from Dr. Robert Buckhout, a psychologist specializing in cognitive factors affecting eyewitness identification. Dr. Buckhout’s testimony was intended to address the effects of stress and other factors on the accuracy of eyewitness accounts. The defense argued that the testimony would provide jurors with a framework for evaluating eyewitness testimony, particularly concerning the relationship between stress and accurate identification, susceptibility to suggestion, and the lack of correlation between confidence and accuracy.

    Procedural History

    The trial court denied the defendant’s motion to admit the expert testimony. The defendant appealed, arguing the denial was an abuse of discretion. The appellate division affirmed the trial court’s decision. The New York Court of Appeals granted leave to appeal and affirmed the appellate division’s ruling.

    Issue(s)

    Whether the trial court abused its discretion in denying the defendant’s motion to admit expert testimony on the reliability of eyewitness identification.

    Holding

    No, because the trial court did not abuse its discretion in determining that the proposed testimony was unreliable, cumulative, and not beyond the ken of the jury.

    Court’s Reasoning

    The Court of Appeals emphasized that the admissibility of expert testimony is primarily a matter of trial court discretion, subject to limited appellate review. The court deferred to the trial court’s assessment that the testimony on perceptual factors lacked sufficient acceptance within the scientific community. Furthermore, the court agreed that the proposed testimony would be cumulative, as defense counsel could cross-examine witnesses on relevant factors like opportunity to observe, stress, and lighting conditions, and the judge would provide a standard jury charge on considering these factors. The court stated, “Expert testimony must by the very nature, be beyond the ken of jurors whose basic intelligence should not be underestimated. The jury’s function to judge the facts should not be usurped unless expert testimony is required and necessary to assist them.”

    The dissenting judge, Kaye, argued that the trial court’s stated reasons for denying the motion were legally insufficient. The dissent noted an emerging trend of judicial acceptance of expert psychological testimony on eyewitness identification and emphasized the extensive research data supporting its reliability. The dissent further argued that the proposed testimony was not cumulative, as it would provide a general analytical framework not available through cross-examination or standard jury instructions. Finally, the dissent asserted that the notion that jurors are generally aware of factors relevant to eyewitness reliability has been refuted by research. The dissent cited People v. Taylor, 75 N.Y.2d 277, 293, arguing admission of such testimony could dispel misconceptions jurors possess. The dissent concluded that the trial court’s preclusion was based on a mistaken legal analysis, warranting reversal.

  • People v. Hughes, 59 N.Y.2d 523 (1983): Admissibility of Testimony After Pretrial Hypnosis

    People v. Hughes, 59 N.Y.2d 523 (1983)

    Hypnotically refreshed testimony is inadmissible as evidence unless it satisfies the standard for admissibility of scientific evidence and is deemed reliable by the scientific community; however, a witness is not necessarily incompetent to testify to events recalled before hypnosis.

    Summary

    The New York Court of Appeals addressed whether a rape victim’s testimony was admissible after undergoing pretrial hypnosis to refresh her memory. The court held that post-hypnotic recollections are inadmissible unless the procedure is generally accepted as reliable in the scientific community. However, the court also ruled that the witness was not automatically barred from testifying about pre-hypnotic recollections, provided those recollections are deemed reliable after a pretrial hearing. This case provides a framework for balancing the investigative uses of hypnosis with a defendant’s right to a fair trial.

    Facts

    The victim was raped in her apartment. Initially, she had difficulty recalling the details of the attack. Police arranged for her to undergo hypnosis with a psychologist to help restore her memory. During the session, she identified the defendant, a neighbor she knew, as her assailant. Prior to hypnosis, she told her sister “I saw Kirk” (defendant’s first name). Subsequent to the initial hypnosis session, and after reading about the effects of prehypnotic suggestions, the victim consulted a psychiatrist to make sure she was not being forced to remember something that was not true. The defense moved to suppress the victim’s identification, arguing the hypnosis was unduly suggestive and impaired his right to confrontation.

    Procedural History

    The trial court initially granted a hearing to determine if the hypnotic procedures were impermissibly suggestive. After the hearing, the trial court concluded that the hypnosis was not impermissibly suggestive and admitted the victim’s testimony. The defendant was convicted of rape, burglary, and assault. The Appellate Division reversed, holding that hypnotically produced testimony is not generally accepted as reliable and should be inadmissible, though the victim could testify to pre-hypnotic recollections. The prosecutor appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether hypnotically refreshed recollections are admissible as evidence at trial.

    2. Whether a witness who has undergone pretrial hypnosis is incompetent to testify to events recalled prior to the hypnosis.

    Holding

    1. No, because hypnotically refreshed recollections are only admissible if the procedure and results are generally accepted as reliable in the scientific community.

    2. No, because the pretrial use of hypnosis does not necessarily render the witness incompetent to testify to events recalled prior to being hypnotized, but a pretrial hearing is required to determine the reliability of the prehypnotic recollection.

    Court’s Reasoning

    The Court of Appeals applied the Frye standard, requiring that scientific evidence be generally accepted as reliable in the relevant scientific community. The court recognized the inherent suggestibility of hypnosis, noting that it can lead to subjects becoming more susceptible to suggestion, confabulating events, and experiencing increased confidence in their recollections, regardless of accuracy. The court emphasized that there is no scientifically accepted method for determining whether recollections under hypnosis are accurate. The court stated: “Because we recognize that hypnotically aided recall may produce either accurate memories or at times may facilitate the creation of pseudo memories, or fantasies that are accepted as real by subject and hypnotist alike, we are deeply troubled by the utilization of this technique among the police. It must be emphasized that there is no known way of distinguishing with certainty between actual recall and pseudo memories except by independent verification”.

    The court distinguished hypnosis from other methods of refreshing recollection, highlighting that suggestion is an essential part of the hypnotic process. While acknowledging that hypnosis may be a useful investigative tool for generating leads, the court cautioned against using it to confirm police suspicions or prepare a witness for trial. The court held that excluding posthypnotic recollections does not eliminate the impact of the hypnotic session because the added confidence the witness has obtained remains and may hinder effective cross-examination.

    The court outlined the procedures to follow in cases where a witness has undergone hypnosis prior to trial, requiring the People to demonstrate by clear and convincing proof that the testimony of the witness as to prehypnotic recollection will be reliable and that there has been no substantial impairment of the defendant’s right of cross-examination. The defendant retains the option to introduce evidence of the hypnotic procedures and expert testimony on the effect of hypnosis on the witness’s recollections.