Individual States' Ruling Preferences

The Daubert ruling rests on an interpretation of the Federal Rules of Evidence. As a statutory rather than a constitutional case, it is not binding to state legislatures. Some state courts of appeal are ordering remands or new hearings because the trial court failed to conduct a Daubert hearing; there are many variations from state to state in how Daubert is implemented.

Some states have remained faithful to Frye, some have adopted Daubert, and some have rejected both and used their own rules.

California and the Frye Test

California had been utilizing the Frye Test since the 1950's. This standard is still in use, based on the 1976 case People v. Kelly. (It is commonly referred to as Kelly/Frye.) The Kelly/Frye standard requires "a preliminary showing of general acceptance of the new technique in the relevant scientific community" (as outlined under Frye.)

California evidence Code §§ 720 and 801 must also be taken into account. It requires a two-step process:

  1. the reliability of the method must be established, usually by expert testimony
  2. the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject.

As mentioned under Frye, these rules do not pose significant problems for environmental or geochemical forensic analytical testing.

Case Histories

The following cases are taken from an article by Bart Simmons: "Are the Data Legally Defensible" in the "Chemists Corner" of Hydrovisions Magazine.

People v. Hale, 1976, California Appellate Court: The case involved illegal dumping of 1,1,1-trichloroethane into a waste dumpster. The normal regulatory framework requires labs to follow the EPA Methods listed in SW-846, a manual compiled by the EPA for dealing with analytical and sampling methods for hazardous waste. The appeal focused on major deviations from these methods on the part of the prosecution:

  1. No sampling plan was used.
  2. The lab had used Method 8015 (flame ionization detector) instead of the accepted methods a 8010 or 8240 (mass selective detector).
  3. Samples were frozen instead of cooled to 4ºC.
  4. The 14-day holding time was exceeded.

The court held that the deviations were harmless: "We discern no per se rule which does automatically preclude the introduction of evidence of disposal of hazardous waste just because the gathering of the samples does not follow every jot and title of the EPA manual."

People v. Sangani, 1994: The case involved illegal disposal of hazardous waste into the sewer system. The defendant appealed, in part, because the lab that did the analysis was not certified. The Appellate Court found that the data would be admissible even if the Hazardous Waste Control Law required the use of a certified lab:

"Failure to follow precise regulatory or statutory requirements for laboratory tests generally does not render the test results inadmissible, provided the foundational requirements for establishing the reliability of the tests are met. The necessary foundational requirements are: the testing apparatus is in proper working order; the test was properly administered and the operator was competent and qualified."

People v. K&L Plating, 1997: This case is not from an appellate court, but is interesting because it involved measuring of hydrogen cyanide of the headspace in a jar of sludge from a waste treatment tank. A Draeger tube, which uses color to measure concentrations of hydrogen cyanide, was used. Regulations dictate that samplers use ten strokes of the tube to find the proper concentration, but the tube changed color in one stroke due to an unexpectedly high concentration. The samplers determined that further strokes were not necessary as the levels of hydrogen cyanide were already at the limits of the Draeger tube's sensitivity.

Even though the evidence violated regulatory rules, the prosecution argued that the monitoring used an accepted scientific principle (that a lower estimated concentration could be calculated from the data at hand) and provided an expert witness to support these conclusions. The court ignored the violations and concluded that hazardous levels of hydrogen cyanide were emitted by the sludge. The defendant plead guilty.

Next: References

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