THE PEOPLE, Plаintiff and Respondent, v. WILLIAM MICHAEL LEAHY, Defendant and Appellant.
No. S035250
Supreme Court of California
Oct. 27, 1994.
8 Cal. 4th 587
Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Alan J. Crivaro, Deputy Public Defenders, for Defendant and Appellant.
Linda F. Robertson and John T. Philipsborn as Amici Curiae on behalf of Defendant and Appellant.
Michael R. Capizzi, District Attorney, Maurice L. Evans, Chief Assistant District Attorney, Wallace J. Wade, Assistant District Attorney, Kathleen M. Harper and Donald Clarence, Deputy District Attorneys, for Plaintiff and Respondent.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Frederick R. Millar, Jr., Deputy Attorney General, Harvey M. Grossman, McCutchen, Doyle, Brown & Enersen, David M. Heilbron and Richard B. Ulmer, Jr., as Amici Curiae.
OPINION
LUCAS, C. J.—
INTRODUCTION
The issues addressed by the Court of Appeal in this case were (1) whether the results of a horizontal gaze nystagmus (HGN) field sobriety test are admissible in the absence of a Kelly/Frye foundational showing, that is, foundational evidence disclosing general acceptance of the test within the relevant scientific community (see People v. Kelly (1976) 17 Cal.3d 24 [hereafter Kelly]; Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014 (hereafter Frye)), and (2) whether a police officer without scientific expertise is qualified to give an opinion concerning the results of the HGN test. The Court of Appeal answered both questions in the negative and reversed defendant Leahy‘s convictions for driving under the influence of alcohol (
We granted review and asked for supplemental briefing on the question whether the Kelly/Frye standard for admitting the results of new scientific techniques should be modified following thе United States Supreme Court‘s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [hereafter Daubert], holding that Frye was abrogated by
Accordingly, we affirm the judgment of the Court of Appeal reversing defendant Leahy‘s conviction on the ground of failure to comply with Kelly, and direct a remand to the trial court for a Kelly hearing in accordance with our opinion.
FACTS
The following facts were taken largely from the Court of Appeal opinion. Although that court also resolved a consolidated appeal in an unrelated case (People v. Tatar), we confine our discussion to the appeal of defendant William Michael Leahy.
Leahy was stopped after a police officer observed him driving a car traveling 55 miles per hour in a 25-mile-per-hour zone. Leahy‘s face was flushed, his eyes were red and watery, his speech was slurred, his balance was unsteady, and he exuded the odor of alcohol. Despite these relatively conventional indicia of intoxication, the officer was not convinced defendant was under the influence of alcohol. The officer decided to give defendant some field sobriety tests.
Defendant passed two such tests, the “internal clock” test and the “alphabet” test. He was also required, however, to take the HGN test. As a recent appellate decision explains, “Nystagmus is an involuntary rapid movement of thе eyeball, which may be horizontal, vertical, or rotary. [Citation.] An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. [Citation.] Some investigators believe alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction. [Citation.]” (People v. Ojeda (1990) 225 Cal.App.3d 404, 406.)
In the present case, the officer believed that defendant failed the HGN test, and accordingly he arrested defendant. A subsequent intoxilyzer breath test revealed a .10 percent blood-alcohol level. Accordingly, defendant was charged with driving under the influence of alcohol (
COURT OF APPEAL DECISION
The Court of Appeal focused primarily on the question whether police officers were competent to testify regarding HGN test results in light of the Kelly/Frye rule. The court assumed the continued vitality of the Kelly/Frye formulation, and concluded that the HGN test was indeed a scientific technique requiring expert foundational testimony. (Compare People v. Ojeda, supra, 225 Cal.App.3d at pp. 407-409 [allowing police officer to testify regarding HGN test results as indicating defendant‘s intoxication], with People v. Williams (1992) 3 Cal.App.4th 1326, 1332-1335 [disallowing officer‘s opinion testimony, based on HGN test, that suspect had consumed alcohol], and People v. Loomis (1984) 156 Cal.App.3d Supp. 1, 5-7 [disallowing police officer‘s opinion testimony, based on HGN test results, regarding suspect‘s blood-alcohol level].)
The Court of Appeal agreed with the analyses of the Williams and Loomis courts and concluded “[i]t was error to admit HGN evidence as either lay or expert testimony without a proper scientific foundation. The usual field sobriety tests are grounded in common knowledge, i.e., that intoxicated persons will often demonstrate lack of concentration, judgment, balance, and coordination. HGN is not. [¶] Consequently, at least as the law of California currently stands, it will be error in the event of any retrial to permit such evidence as the basis of an opinion concerning intoxication without a Kelly-Frye foundation, i.e., proof of general acceptance of HGN in the scientific community. [Footnote omitted.]”
DISCUSSION
We will first discuss the background leading to adoption of the Kelly/Frye formulation and then outline some of the considerations which militate for or against its retention. We next will address the Daubert decision and its effect on that formulation. As will appear, we conclude, consistent with the views of both parties herein, that Daubert affords no
1. People v. Kelly—Our unanimous 1976 Kelly decision (17 Cal.3d 24) involved the admissibility of voiceprint evidence produced by a technique used to identify voices by spectrographic analysis. That case first set forth certain “general principles of admissibility” of expert testimony based on new scientific techniques, including the following “traditional” two-steр process: “(1) [T]he reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. (See
Kelly next considered the appropriate test for determining the reliability of a new scientific technique. We recognized that one possible approach would be to leave questions of admissibility to the discretion of the trial court in the first instance, “in which event objections, if any, to the reliability of the evidence (or of the underlying scientific technique on which it is based) might lessen the weight of the evidence but would not necessarily prevent its admissibility.” (17 Cal.3d at p. 31.)
We rejected the foregoing approach, however, and confirmed allegiance to the “germinal” Frye decision, supra, 293 F. 1013, and its formulation, as follows: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Id. at p. 1014, italics added and quoted in Kelly, supra, 17 Cal.3d at p. 30.)
In Kelly, we explained that prior California cases, and “most” sister state cases, have followed Frye and “assigned the task of determining reliability of the evolving technique to members of the scientific community from which the new method emerges.” (Kelly, supra, 17 Cal.3d at p. 31.) We
Expounding on the last factor, we noted that “[s]everal reasons support a posture of judicial caution in this area. Lay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive credentials. We have acknowledged the existence of a ’ . . . misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature.’ [Citation.]” (17 Cal.3d at pp. 31-32.) We further noted that once a trial court has admitted evidence derived from a new technique and the decision is affirmed on appeal in a published opinion, it will become precedent controlling subsequent trials. (Id. at p. 32.) Thus, it is essential that the decision to admit such evidence is carefully considered.
For all the foregoing reasons, in Kelly we deemed the more cautious Frye formulation preferable to simply submitting the matter to the trial court‘s discretion for decision in each case. We now review that conclusion in light of a recent decision by the United States Supreme Court.
2. Daubert v. Merrell Dow Pharmaceuticals, Inc.—In Daubert, supra, 509 U.S. 579, plaintiffs sued the manufacturer (Merrell Dow) of the anti-nausea drug Bendectin, alleging its ingestion caused birth defects. Merrell Dow moved for summary judgment, submitting an affidavit from an expert epidemiologist, Dr. Lamm, who stated that none of the 30 pertinent published studies had ever found Bendectin capable of causing malformations in fetuses. Rather than directly contest Dr. Lamm‘s factual statements, plaintiffs responded with their own experts’ declarations to the effect that their unpublished studies, and reanalyses of published studies, indicated a link between Bendectin and fetal malformation.
The federal district court granted Merrell Dow‘s motion for summary judgment on the basis that the scientific theories of plaintiffs’ experts failed to meet Frye‘s “general acceptance” standard. (See Daubert v. Merrell Dow Pharmaceuticals, Inc. (S.D.Cal. 1989) 727 F.Supp. 570, 572-576.) The United States Court of Appeals for the Ninth Circuit affirmed. (See Daubert v. Merrell Dow Pharmaceuticals, Inc. (9th Cir. 1991) 951 F.2d 1128.) That court ruled that expert opinion based on methodology diverging “significant-ly from the procedures accepted by recognized authorities in the field
The Supreme Court observed that although the Frye standard has been the “dominant” one in the 70 years since its formulation, it has come under “increasing attack of late.” (509 U.S. at p. 585.) Indeed, according to the high court, “The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion.” (Id. at p. 586, fn. omitted.) The court, however, found it unnecessary to resolve the debate. Instead, the court concluded that the Frye test had been superseded by adoption of the Federal Rules of Evidence in 1975. (See
Additionally, the Supreme Court in Daubert relied on
3. California Provisions on Admissibility—Daubert, dealing with federal law, offers at most only persuasive authority to assist us in determining whether to reconsider our Kelly decision. We first review the California statutory provisions to determine whether the Kelly standard is “absent from and incompatible with” (see Daubert, supra, 509 U.S. at p. 589) the California Evidence Code provisions regarding the admissibility of expert testimony.
The California Evidence Code was enacted in 1965, and the pertinent provisions have not been amended since that time.
In 1982, as a result of the passage of an anticrime initiative measure (Prop. 8), the voters adopted a constitutional “Truth-in-Evidence” provision (
4. Survival of Kelly—Sections 720 and 801, in combination, seem the functional equivalent of Federal Rules of Evidence,
Thus, were we approaching the question afresh, without the benefit of our analysis and holding in Kelly, supra, 17 Cal.3d 24, we might reasonably conclude, by analogy to Daubert, that the framers of the Evidence Code
Both defendant and the People herein urge us to retain our Kelly holding. Defendant encourages us to preserve the “cautious” and “conservative” approach we deliberately chose in Kelly. The People (represented by the Orange County District Attorney) agree, stating, “there must be some standard test for the trial courts to follow to minimize the influx of what has come to be known as ‘junk science’ into the courtrooms of this state. The Kelly/Frye test, while not рerfect, has acted to keep such unreliable evidence from the jury.” Amici curiae Los Angeles District Attorney (LADA), Criminal Justice Legal Foundation (CJLF), California Public Defenders’ Association, and Product Liability Advisory Counsel have also submitted briefs supporting the retention of Kelly.
LADA takes the position that for us to adopt Daubert would “ignore over forty years of precedent based upon policy considerations which have not changed, and without any compulsion to do so from the California Legislature or from the voters.” In the view of CJLF, “California should retain the Kelly rule as an important safeguard against untested and unproven scientific theories.” The other two above mentioned amici curiae are in general agreement.
The foregoing position, however, is not unanimous. Other amici curiae (namely, the State Attorney General and the Appellate Committee of the California District Attorneys Association (ACCDA)) urge us to employ the Daubert analogy and either discard, or substantially alter, our Kelly holding. It seems apparent from their briefs, however, that the primary concern of these amici curiae involves the interpretation and application of Kelly in the context of the deoxyribonucleic acid (DNA) cases (see, e.g., People v. Barney (1992) 8 Cal.App.4th 798). These amici seem more concerned with the narrow issue of the exclusion of DNA test evidence, an issue not involved here, than with the general question of the retention of Kelly.
Additionally, ACCDA suggests it is unclear how to apply Kelly‘s requirement (see 17 Cal.3d at p. 30) that correct scientific procedures be employed in the case. (Compare People v. Farmer (1989) 47 Cal.3d 888, 913 [careless testing affects weight of evidence not admissibility], with People v. Barney, supra, 8 Cal.App.4th at pp. 823-824 [Kelly‘s “‘correct scientific procedures‘” requirement “is not merely a question of weight but is an element of the Kelly-Frye admissibility determination“].) ACCDA urges us to modify our Kelly rule to clarify the foregoing uncertainties.
Amicus curiae Attorney General echoes the concerns of ACCDA, and asserts that Kelly/Frye (1) emphasizes “nose counting” of the scientific community rather than focusing directly on the reliability of the challenged technique, thereby excluding “demonstrably reliable, highly probative evidence, as it has in the case of DNA evidence,” (2) is premised on an unrealistic model of a “relatively monolithic scientific community,” (3) improperly defers to scientists the legal question of the admissibility of evidence; and (4) unduly penalizes crime victims, their families and friends by excluding relevant evidence of guilt.
The Attorney General also observes that the Kelly/Frye test is uncertain in various respects, such as (1) whether, and to what extent, it applies to expert testimony (see People v. McDonald (1984) 37 Cal.3d 351, 372-373), (2) whether there must be general acceptance of the scientific technique itself or merely the scientific principle underlying it, (3) whether “probability estimates” (e.g., in DNA cases) are subject to Kelly/Frye, (4) what is the “relevant” scientific community, and (5) what constitutes “general acceptance” (e.g., a simple majority, a consensus, or a significant minority).
The Attorney General further suggests that the supposed benefits of Kelly/Frye (e.g., minimizing undue influence on juries, leaving scientific questions to qualified scientists, avoiding multiple suits, and promoting
As with amicus curiae ACCDA, the Attorney General urges us to clarify or “fix” our Kelly rule in the following respects, should we elect not to abandon it entirely:
First, we should make clear that “general acceptance” does not require unanimity, a consensus of opinion, or even majority support by the scientific community. The Attorney General argues that general acceptance should mean that the technique “is accepted by other well credentialed scientists outside the testing laboratory . . . .” (Italics in original.)
Second, according to the Attorney General, we should clarify that Kelly does not apply to “probability estimates” such as those given in DNA cases, and we should hold that Kelly is inapplicable to the “particular standardized protocol” used to perform the test in the case at hand, rather than to the “fundamental validity” of the technique itself.
Finally, the Attorney General suggests we should adopt an abuse of discretion standard of appellate review, rather than permit a de novo review at the appellate level. (See People v. Barney, supra, 8 Cal.App.4th at pp. 810-811 [general acceptance of DNA testing subject to “limited de novo review” on appeal].)
In sum, rather than raise fundamental defects in our approach in Kelly, these amici curiae appear more concerned with clarifying or modifying our Kelly standard for use in future cases. But most of the suggested modifications or clarifications do not relate to issues presented in this case, and do not directly affect our decision whether or not to retain Kelly. Accordingly, we decline to address them here except insofar as they оverlap with general criticisms of the Kelly/Frye rule as discussed below. Amici curiae‘s various suggestions for improving or “fixing” the Kelly rule may well have merit, but the present case is not a good vehicle for addressing them. Likewise, we will not permit amici curiae to convert this relatively narrow HGN case into a vehicle for reviewing the DNA cases. We turn, then, to the commentators critical of the Frye formulation itself.
The critics of Frye focus primarily on its conservative nature: As previously noted, the doctrine contemplates an undefined period of testing and
But we acknowledged the foregoing basis for criticism in Kelly, noting that “[s]ome criticism has been directed at the Frye standard, primarily on the ground that the test is too conservative, often resulting in the prevention of the admission of relevant evidence [citations].” (17 Cal.3d at pp. 30-31Id. at p. 31.) As we have previously indicated, Kelly set forth at length its reasons for adopting a more cautious approach to the admission of new sciеntific evidence. Nothing occurring in the years since Kelly was decided requires us to reconsider that conclusion.
Indeed, as late as 1989 we acknowledged that “[t]he courts are willing to forego admission of such techniques completely until reasonably certain that the pertinent scientific community no longer views them as experimental or of dubious validity. This all-or-nothing approach was adopted [in Kelly] in full recognition that there would be a ‘considerable lag’ between scientific advances and their admission as evidence in a court proceeding. [Citation.]” (People v. Stoll (1989) 49 Cal.3d 1136, 1156.)
As previously noted, amicus curiae Attorney General criticizes Kelly on the additional ground that it requires the trial judge to defer admissibility questions to a “nose count” of scientists rather than allowing the judge or jury to directly confront the issue of the reliability of the evidence. But, as we observed in Kelly, it may be preferable to let admissibility questions regarding new scientific techniques be settled by those persons most qualified to assess their validity. (See 17 Cal.3d at p. 31.) Some commentators
Moreover, the criticism of Frye has been balanced by favorable commentary and widespread support. As we previously observed, both the defendant and the People herein (through the Orange County District Attorney) endorse Kelly as an essential check on the admissibility of new scientific techniques. Moreover, most critics of Frye acknowledge the test has several positive aspects and operates well in many situations. (See Hanson, supra, 16 Westеrn St. U. L.Rev. at pp. 361-363, 458-460; Harvard Note, supra, 101 Harv.L.Rev. at p. 127; Black, supra, 56 Fordham L.Rev. at pp. 637-638.)
For example, the Hanson article lists the following positive features of the Frye doctrine: “(a) The time and cost of proving and establishing new scientific principles are transformed from a courtroom . . . to a laboratory . . . . [¶] (b) Each court thus need not confront the principle de novo, and may draw from other court decisions, the applicable literature, . . . and if offered, additional expert testimony. . . . [¶] (c) Presumably a battery of well-qualified scientific and medical personnel are available to support the principle . . . .” (Hanson, supra, 16 Western St. U. L.Rev. at pp. 458-459.)
The Harvard Note is likewise predominantly favorable toward Frye. The author states that, “[d]espite the[] criticisms, however, the Frye rule plays a vital role in the trial process . . . . [¶] Although the Frye test may be difficult to apply and at times may exclude relevant evidence, it has proven its value for over sixty years. It has prevented justice from becoming a matter of amateur guesswork based on unreliable techniques and has helped to assure that determinations of guilt or innocence are not influenced by the vagaries of pseudoscience. [Frye is] . . . a wise rule that contributes greatly to the integrity of the criminal process.” (Harvard Note, supra, 101 Harv. L.Rev. at p. 127.)
Even Professor Giannelli, Frye‘s severest critic, acknowledges that Frye‘s requirement of a “special burden” as a prerequisite to admissibility of a new scientific technique has merit, and that if a “relevancy” test is chosen as an alternative (as in Daubert), special steps should be taken to assure the reliability of the evidence, including requiring the prosecutor to prove the validity of the technique beyond a reasonable doubt. (Giannelli, supra, 80 Colum. L.Rev. at pp. 1248-1250.)
Additionally, we observe that the Legislature has had ample opportunity to amend the Evidence Code provisions to abrogate or modify the general acceptance standard that Kelly found implicit within them. The Legislature has made frequent amendments to the expert testimony provisions of that code since its adoption in 1965. (See, e.g.,
In sum, Kelly sets forth the various reasons why the more “conservative” Frye approach to determining the reliability of expert testimony regarding scientific techniques represents an appropriate one. Daubert, which avoided the issue of Frye‘s “merits,” presents no justification for reconsidering that aspect of our holding in Kelly. Thus, we conclude that the Kelly formulation survived Daubert in this state, and that none of the above described authorities critical of that formulation persuades us to reconsider or modify it at this time. Accordingly, we turn next to the question of the application of that standard to the facts of the present case.
5. HGN Test Is a New Scientific Test Under Kelly—After reviewing the briefs and applicable cases, we conclude the Court of Appeal correctly decided that the HGN test was a “new scientific technique” within the scope of the Kelly formulation, and for that reason proof was required of its general acceptance by the scientific community.
a. California HGN Decisions—The California decisions involving the HGN test do not address whether that test involves a “new scientific technique” within the scope of Kelly. (See People v. Williams, supra, 3
Other decisions make clear that Kelly is applicable only to “new scientific techniques.” (See People v. Webb (1993) 6 Cal.4th 494, 524; People v. Stoll, supra, 49 Cal.3d 1136, 1155-1156; Kelly, supra, 17 Cal.3d at p. 30.) The People argue that HGN testing is neither “new” nor “scientific.” We disagree.
b. HGN Testing Is a “New” Technique—As we stated in Stoll, supra, 49 Cal.3d at page 1156, “Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.” (See also People v. Clark (1993) 5 Cal.4th 950, 1018 [allowing blood spatter evidence based on technique predating Kelly decision and derived from matters of common knowledge].)
In Stoll, supra, we observed that the standard psychological testing at issue in that case was “not new to psychology or the law . . . . [¶] California courts have routinely admitted defense expert opinion analogous to the one offered here, with no suggestion that Kelly/Frye applies. . . . [¶] Moreover, . . . diagnostic use of written personality inventories . . . has been established for decades. Modern courts have not resisted reference to these tests.” (49 Cal.3d at pp. 1157-1158.)
The People observe that HGN testing has been used by law enforcement agencies for more than 30 years. A 1988 annotation confirms that “[t]he horizontal gaze nystagmus (HGN) test has been in use for 30 years, but it has not been widely applied in the United States until recently.” (Annot., Horizontal gaze nystagmus test: use in impaired driving prosecution (1988) 60 A.L.R.4th 1129, 1131, italics added and fn. omitted.) This annotation observes that the HGN symptom was first recognized in the 1960‘s in connection with barbiturate use, but the earliest court decision cited by the annotation as addressing the admissibility of HGN test results was decided in California in 1984 (People v. Loomis, supra, 156 Cal.App.3d Supp. 1), and that case disallowed the evidence.
In determining whether a scientific technique is “new” for Kelly purposes, long-standing use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians. Unlike the psychiatric tests involved in Stoll, supra, 49 Cal.3d at pages
Given the recent history of legal challenges to the admissibility of HGN test evidence in this and other states, it seems appropriate that we deem the technique “new” or “novel” for purposes of Kelly. To hold that a scientific technique could become immune from Kelly scrutiny merely by reason of long-standing and persistent use by law enforcement outside the laboratory or the courtroom, seems unjustified.
c. HGN Testing Is a “Scientific” Technique—In Stoll, we also observed that, by reason of the potential breadth of the term “scientific” in the Kelly/Frye doctrine, the courts often refer “to its narrow ‘common sense’ purpose, i.e., to protect the jury from techniques which, though ‘new,’ novel, or ‘experimental,’ convey a ‘misleading aura of certainty.’ [Citations.]” (49 Cal.3d at pp. 1155-1156.) According to Stoll, a technique may be deemed “scientific” for purposes of Kelly/Frye if “the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury.” (Id. at p. 1156, italics added.)
Defendant herein contends that the HGN test, both in “name” (“horizontal gaze nystagmus“) and “description” (observation of involuntary jerking of eyeball induced by ingestion of alcohol) fits Stoll‘s definition of a scientific technique that provides the officer, and thus the jury, with supposedly “definitive” proof of intoxication. As noted in People v. Ojeda, supra, 225 Cal.App.3d at page 408, quoting from another case, “‘[T]he principal obstacle to the admissibility of the horizontal gaze nystagmus test may be its pretentiously scientific name.‘” A jury might be unduly swayed by HGN evidence solely by reason of its technical nomenclature.
Additionally, the HGN test, as described by the arresting officer in the present case, appears to provide to the jury a “definitive truth” wholly apart from its imposing name. The arresting officer in this case was asked what he “generally” did to determine whether or not a suspect was intoxicated. He responded, “Well, I—I check their nystagmus, that‘s a big indicator for me.”
The arresting officer in the consolidated appeal of Michael Tatar, the transcript of which we take judicial notice, was even more authoritative regarding HGN testing. According to the officer, he has “always been right” whenever he checked his HGN test results with subsequent blood-alcohol test results.
Thus, the “aura of certainty” emanating from the officers’ description of HGN tests was unmistakable. A jury could be unduly and unjustifiably impressed by the confidence the testifying officers showed regarding the HGN procedure.
Defendant cites many cases from other states holding that HGN testing is a “scientific” technique for purposes of Frye analysis, and that, accordingly, expert testimony from persons other than the officers who administer the HGN tests is required to sustain its admissibility. (See State v. Barker (1988) 179 W.Va. [366 S.E.2d 642, 645]; State v. Superior Court (Blake) (1986) 149 Ariz. 269 [718 P.2d 171, 179-181] [hereafter Blake]; State v. Borchardt (1986) 224 Neb. 47 [395 N.W.2d 551, 559]; State v. Cissne (1994) 72 Wn.App. 677 [865 P.2d 564, 568] [hereafter Cissne]; State v. Witte (1992) 251 Kan. 313 [836 P.2d 1110, 1115-1116] [hereafter Witte]; Malone v. City of Silverhill (Ala.Crim.App. 1989) 575 So.2d 101, 105; People v. Vega (1986) 145 Ill.App.3d 996 [99 Ill.Dec. 808, 496 N.E.2d 501]; State v. Reed (1987) 83 Ore.App. 451 [732 P.2d 66, 68]; Com. v. Apollo (1992) 412 Pa.Super. 453 [603 A.2d 1023, 1026]; Com. v. Miller (1987) 367 Pa.Super. 359 [532 A.2d 1186, 1189].)
For example, in Witte, supra, the Kansas Supreme Court cited 11 decisions from other states holding that HGN testing is a “scientific” test requiring Frye compliance. (836 P.2d at p. 1115.) As stated in Witte, “The HGN test is distinguished from other field sobriety tests in that science, rather than common knowledge, provides the legitimacy for HGN testing. [Citations.] Certain reactions to alcohol are so common that judicial notice will be taken of them; however, HGN testing does not fall into this category. [Citation.] HGN test results are ‘scientific evidence based on the scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test.’ [Citation.] HGN evidence could have a disproportionate impact on the jury‘s decisionmaking process because of the test‘s scientific nature and because the jury may not understand the nature of the test or the methodology of its procedure. [Citations.].” (Ibid.)
Thus, we conclude that HGN tests involve a “new scientific technique” that is required to meet Kelly‘s general acceptance test.
6. Police Officer Testimony Is Insufficient to Establish General Acceptance-
The People concede that “most states have determined the [HGN] test is a scientific test” under Frye. They nonetheless insist that testimony by the officers administering the HGN test is sufficient to establish Kelly compliance. They rely on our statement in People v. Stoll, supra, 49 Cal.3d at page 1157, that “absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye.” The People observe that the officers who administered the tests are subject to cross-examination, and that the jury is not likely to accord their opinions regarding HGN test results the same weight as a scientist‘s opinion on the same subject. According to the People, field sobriety tests such as the HGN test merely “rely on the experience of a police officer in observing the performance of persons who may or may not be intoxicated. . . . There is nothing more scientific about the HGN test than the other field sobriety tests.”
The People also rely on language in People v. Ojeda, supra, 225 Cal.App.3d at page 408, that “police officers who deal daily with intoxicated persons become expert at recognizing the physical effects of intoxication . . . . This does not make them scientists.” The People cite cases from other states holding either that the HGN test is not a “scientific” test or that the testimony of police officers regarding administration of the HGN test is sufficient compliance with the Frye standard. (See City of Fargo v. McLaughlin (N.D. 1994) 512 N.W.2d 700, 706-707; State v. Garrett (1991) 119 Idaho 878 [811 P.2d 488, 491-493]; State v. Sullivan (S.C. 1993) 426 S.E.2d 766; State v. Bresson (1990) 51 Ohio St.3d 123 [554 N.E.2d 1330, 1334]; State v. Armstrong (La.Ct.App. 1990) 561 So.2d 883, 885-887; see also State v. Clark (1988) 234 Mont. 222 [762 P.2d 853, 856-857] [allowing HGN evidence by police officer; Frye test not adopted in state]; State v. Murphy (Iowa 1990) 451 N.W.2d 154, 156-157 [same]; Whitson v. State (1993) 314 Ark. 458 [863 S.W.2d 794, 798] [same]; Emerson v. State (Tex.Crim.App. 1994) 880 S.W.2d 759, 768-769 [same]; State v. O‘Key (1993) 123 Ore.App. 54 [858 P.2d 904, 907-908] [same].)
The foregoing decisions, however, do not explain how police officers are competent to establish general acceptance of HGN testing in the scientific community, or how they are qualified to relate the scientific bases underlying the nystagmus test. As stated in People v. Williams, supra, 3 Cal.App.4th at pages 1333 to 1334, “We will assume that [officer] Vega‘s training and experience qualified him as an expert to administer the nystagmus test and observe signs of nystagmus. Being qualified to attribute the observed eye movements to a particular cause, however, is a far different matter. . . . [¶] Vega‘s opinion that appellant was under the influence of alcohol, to the
Consistent with both the weight of authority and the cautious, “conservative” nature of Kelly, we conclude that testimony by police officers regarding the mere administration of the test is insufficient to meet the general acceptance standard required by Kelly.
The People urge, however, that we take judicial notice of the various decisions (e.g., Blake, supra, 718 P.2d at pp. 179-181; People v. Buening (1992) 229 Ill.App.3d 538 [170 Ill.Dec. 542, 592 N.E.2d 1222, 1227]; State v. Garrett, supra, 811 P.2d at pp. 490-493; State v. Hill (Mo.Ct.App. 1993) 865 S.W.2d 702, 704-705) and published studies concluding that HGN testing meets the Frye standard. But the conclusions of those decisions and studies are by no means unchallenged, for there appears to exist substantial opposing authority. (See Witte, supra, 836 P.2d at pp. 1119-1121, citing numerous articles and studies; Cissne, supra, 865 P.2d at p. 568, and fn. 5.)
Witte, decided in 1992, suggests that if the Arizona Supreme Court in Blake had been aware of the contrary authority and evidence, it might not have held that HGN testing satisfied Frye. (836 P.2d at p. 1121.) The 1994 Cissne decision likewise observed that “[a]s Witte noted, research and articles critical of HGN testing appeared after some jurisdictions concluded that HGN testing satisfied Frye standard[s].” (865 P.2d at p. 568.) Cissne concluded, “[w]e decline the State‘s invitation to follow those few jurisdictions that have concluded that HGN testing meets the Frye standard. The trial court must evaluate, weigh and consider the conflicting evidence before determining whether the test is novel, and, if it is novel, whether it is reliable . . . .” (Id. at p. 569.)
Additionally, we note that several decisions from other states have refused to resolve the Frye issue on appeal by reference to scientific studies and articles not introduced at the defendant‘s trial. (See Com. v. Miller, supra, 532 A.2d at p. 1190; People v. Vega, supra, 496 N.E.2d at pp. 504-505; State v. Barker, supra, 366 S.E.2d at p. 646; State v. Reed, supra, 732 P.2d at p. 69.) Although theoretically we could attempt to weigh and evaluate the merits of the conflicting authority, it seems more appropriate to remand this issue to a trial court for an evidentiary hearing, as several other decisions
As stated in Witte, “The reliability of the HGN test is not currently a settled proposition in the scientific community. . . . Before this court rules on whether HGN evidence satisfies the Frye admissibility requirements, a trial court first should have an opportunity to examine, weigh, and decide disputed facts to determine whether the test is sufficiently reliable to be admissible for any purpose in Kansas.” (836 P.2d at p. 1121.) We agree with that analysis and, accordingly, we deny the People‘s application for judicial notice.
7. Limited Remand Appropriate-
In accord with our foregoing discussion, we conclude that the Court of Appeal was correct in reversing both counts of defendant‘s conviction, for no evidence was elicited to show that HGN testing had been generally accepted in the scientific community, and the error was clearly prejudicial. As the Court of Appeal concluded, “it is reasonably probable a different result would have been achieved on both counts but for the HGN evidence [citation]. Leahy passed the other field sobriety tests. His blood-alcohol level was said to be .10, only .02 over the statutory maximum; and criminalists generally concede a margin of error of at least plus or minus .01. Also, the passage of time between arrest and test can account for even more than that, up or down. About 90 minutes went by between arrest and Leahy‘s encounter with the intoxilyzer. Depending on when he had his last drink and a host of other factors, his blood-alcohol level could have risen or fallen several points in that time.”
We accept, however, the People‘s suggestion that an entire retrial of the case may be unnecessary. Instead, we will direct the Court of Appeal to reverse defendant‘s conviction and remand the case to the trial court for a Kelly hearing in accordance with our opinion. If, at the conclusion of the hearing, the trial court concludes there is sufficient basis to admit the HGN testimony previously presented, the court should reinstate the judgment without reintroducing such testimony. If the trial court determines the HGN evidence is inadmissible under Kelly, the court should order a new trial if the People so elect. If the judgment of conviction is reinstated, or a new trial ordered, appellate review will be available to the respective parties regarding the trial court‘s ruling, limited to any new issues not resolved in this opinion.
Defendant objects to this limited remand procedure, contending that even if Kelly were deemed satisfied, the question would remain whether police officers were qualified to testify regarding the HGN results. We reject this contention. Once it has been shown that HGN testing is generally accepted in the scientific community, no reason exists why police officers should be deemed unqualified to administer and report the results of those tests. Thus, in future cases, once the Kelly standard has been met, as reflected by a published appellate precedent, the prosecution will not be required to submit expert testimony to confirm a police officer‘s evaluation of an HGN test. Of course, nothing would prevent the defendant from challenging that evaluation with expert testimony of his own.
8. Establishing General Acceptance-
Because the issue may arise on remand, we briefly comment on one aspect of the Kelly formulation that some amici curiae have found troublesome. In Kelly, quoting with approval from Frye, we indicated that a new scientific technique must be “‘sufficiently established to have gained general acceptance in the particular field to which it belongs.‘” (17 Cal.3d at p. 30, italics removed.) We further suggested it was “questionable whether the testimony of a single witness alone is ever sufficient to represent, or attest to, the views of an entire scientific community,” and we observed that “[i]deally, resolution of the general acceptance issue would require consideration of the views of a typical cross-section of the scientific community, including representatives, if there are such, of those who oppose or question the new technique.” (Id. at p. 37, italics added.)
Thereafter, in People v. Shirley, supra, 31 Cal.3d at pages 55 and 56, we indicated that “considerations of judicial economy” would permit a court to scrutinize “published writings in scholarly treatises and journals” in lieu of live testimony. We added that the burden of showing general acceptance lies with the proponent of the evidence to show a “scientific consensus” (italics added), and that “if a fair overview of the literature discloses that scientists significant either in number or expertise publicly oppose [the technique] as unreliable, the court may safely conclude therе is no such consensus at the present time.” (Id. at p. 56.) We concluded in Shirley that “it . . . appears
We do not read Shirley as modifying or abandoning Kelly‘s insistence on ascertaining, if possible, whether the technique has become generally accepted by a “typical cross-section” of the relevant scientific community. Shirley‘s requirement of a “scientific consensus” by “major voices in the scientific community” seems entirely consistent with Kelly in this regard.
A few years later, in People v. Guerra, supra, 37 Cal.3d 385, we expounded briefly regarding Kelly‘s general acceptance test, noting that the Frye test does not demand “absolute unanimity of views in the scientific community. . . . Rather, the test is met if use of the technique is supported by a clear majority of the members of that community.” (37 Cal.3d at p. 418, italics added.) Guerra likewise seems quite consistent with both Kelly and Shirley. Kelly itself, at one point, described the Frye test as calling for “substantial agreement and consensus in the scientific community.” (See 17 Cal.3d at p. 31.) Of course, the trial courts, in determining the general acceptance issue, must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value under the foregoing cases.
9. Summary and Conclusions-
We conclude as follows:
(a) Our Kelly doctrine survived Daubert and continues to represent the standard by which new scientific techniques should be measured before evidence derived therefrom may be admitted in court.
(b) HGN testing is a new scientific technique requiring compliance with Kelly.
(c) Kelly contemplates appropriate expert testimony and evidence showing that HGN testing is generally accepted by a typical cross-section of the relevant scientific community. Until compliance with Kelly is demonstrated, testimony of police officers who merely administer HGN tests is, by itself, inadequate for this purpose.
(d) “General acceptance” under Kelly means a consensus drawn from a typical cross-section of the relevant, qualified scientific community.
The judgment of the Court of Appeal reversing defendant‘s conviction is affirmed, and the Court of Appeal is directed to remand the case to the trial
Mosk, J., Kennard, J., Arabian, J., George, J., and Werdegar, J., concurred.
BAXTER, J.-I respectfully dissent. I do not join the majority in its conclusion that a horizontal gaze nystagmus (HGN) test administered as a field sobriety test by a police officer is based on a “novel scientific principle” and may not be relied on by an experienced police officer in support of a conclusion that a suspect is intoxicated unless it is shown to meet the Kelly/Frye criteria. (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 F. 1013 [54 App.D.C. 46, 34 A.L.R. 145].) Assuming that conclusion is true, however, it does not follow that the trial court erred in admitting the opinion of Officer Van Achen and his reasons for reaching that opinion.
The majority hold that this conviction should be reversed without regard to, or even mention of, the Evidence Code provision that governs the admission of the testimony of Officer Von Achen that, in his opinion, defendant was under the influence of alcohol while driving an automobile.
Further, as a threshold issue, it is doubtful that evidence of an officer‘s observations of a suspect‘s response to the HGN field sobriety test is properly described as scientific evidence. If those observations are scientific evidence because the test is one used in the medical profession, however, there is no reason that the opinion of a trained officer that those observations, with others, may not be relied on by a police officer in support of an opinion that a suspect is intoxicated. That opinion is admissible without subjecting all of the factors which support it to the former Kelly/Frye test.
In short, moving a finger in front of a suspect‘s eyes and observing the reaction of the eyeballs is something a trained police officer can do in the field. One need not be a rocket scientist to be able to observe and assess the reaction of the suspect. If a police officer is able to administer other field sobriety tests and offer an opinion based on the suspect‘s performance that the suspect is intoxicated, he can also be trained to administer the HGN test and should be able to testify that, based on his observations and experience, persons who perform as the suspect did on those tests are intoxicated.
The majority‘s reason for concluding that an officer‘s observations of the reaction of a person to whom the оfficer has administered the HGN test should be equated with sophisticated scientific techniques such as DNA testing, homologous leucocytic antibodies (HLA) typing, or other scientific procedures to which the Kelly/Frye requirements have been applied in the past, does not withstand examination.
Moreover, assuming that an HGN field sobriety test is a scientific procedure, I do not agree that evidence regarding the test is admissible only if the Kelly-Frye criteria are met.
Implicit in the majority opinion is a conclusion that California trial judges are less competent than judges of the federal court to determine the admissibility of scientific evidence. State judges, they hold, should not be called
I
IS EVIDENCE BASED IN PART ON THE HGN TEST SUBJECT TO KELLY/FRYE?
A. Nature of the Evidence.
To put the issues in this case in their proper perspective, one must know what evidence was offered at defendant‘s trial and the basis of the trial court‘s order overruling defendant‘s objection tо admission of the evidence about the HGN test administered to defendant.
Officer Michael Von Achen of the Huntington Beach Police Department was the arresting officer. He testified regarding the symptoms of intoxication he had observed before deciding to place defendant under arrest. Defendant‘s reaction to the HGN test was only one of those symptoms. Officer Von Achen did not testify that this test alone established that a person was under the influence of alcohol, or that the test could establish the percentage of blood alcohol.
Von Achen was not a novice in the field of driving under the influence (DUI) arrests. He had more than nine years of experience, before which he had attended four and one-half months of police academy training. That training included the procedure for administration of field sobriety tests and observation of a suspect‘s reactions to the tests. The tests included a “walk-the-line” test, a “one-leg balance” test, and a “finger-to-nose” test. The training had been followed by supervised field experience in which drunk driving arrests were emphasized. Von Achen had also received training on how to administer the HGN test and had received 15 additional hours of training in DUI investigation.
During Von Achen‘s nine and one-half years as a police officer, he had stopped “thousands” of suspected drunk drivers, of whom approximately five hundred to six hundred had then been arrested. In determining whether
Von Achen stopped defendant‘s car after he observed the car make a turn onto Pacific Coast Highway at a fairly fast rate of speed and then drift across to the center and accelerate quickly. The car was traveling 55 miles per hour in a 25-mile-per-hour construction zone. He noticed that defendant‘s eyes were very red and watery and his face flushed. Defendant‘s speech was thick and slurred. Defendant said he had had two beers. His balance was unsteady when he stepped out of the car.
After questioning defendant about when he had last eaten, slept, or had anything to drink and whether he had any illness or had used medication or drugs, and defendant explained that he had just had a cast removed from a leg in which he had pulled ligaments, Von Achen noticed the odor of alcohol on defendant‘s breath and person. He then attempted to have defendant perform a field sobriety test, the “modified attention” test. Defendant attempted to do that test which involves putting heels and toes together, hands down at the sides, head back with the back arched a little bit, and eyes closed. In that position he was to estimate thirty seconds and then open his eyes. Defendant swayed from front to back two to three inches and opened his eyes after thirty-seven seconds.
Von Achen then administered the HGN test. He observed that defendant was not following his finger smoothly. At that point he formed the opinion that defendant was under the influence of alcohol. He then administered the “ABC” test. Defendant recited the alphabet correctly but in thick and slurred speech. Von Achen did not administer other field sobriety tests because defendant had had an injury to his leg.
Von Achen formed his opinion that defendant had been driving under the influence of alcohol on the basis of the appearance of his eyes and face, the manner in which he was driving, his response to the questions he was asked, his thick and slurred speech, as well as his observations of defendant‘s performance on the tests administered to defendant.
Next, an understanding of the evidence to which the Kelly/Frye rule has been applied and the reasons for the rule is essential. First, and most importantly, the Kelly/Frye rule applies only to expert opinion testimony. In California the admission of expert testimony is governed by statute. (
“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
“(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
The expert is permitted to state the reasons for his opinion and the factors on which it is based. (
In Frye v. United States, supra, 293 F. 1013, from which this state‘s Kelly/Frye rule is derived, the court was called upon to determine the admissibility of expert testimony that is based on a new scientific technique. The test in question was a “systolic blood pressure deception test,” which might be described now as a form of lie detection test. It was based on a theory that systolic blood pressure rises when a subject experiences fear, rage, or pain, and that because a person who consciously lies or conceals facts about, or guilt of, crime fears detection when under examination, there will be a rise in blood pressure corresponding to the extent of the subject‘s fear and attempt to control that fear. The defendant in a murder prosecution had offered an expert to testify to the result of this test. The trial court sustained the prosecutor‘s objection and excluded the evidence.
The circuit court upheld the ruling after holding that expert testimony on a scientific principle or discovery is admissible only when it has “crosse[d]
Notwithstanding the appellation ”Kelly/Frye,” this court approved the Frye formulation 10 years before the Kelly decision. In Huntingdon v. Crowley (1966) 64 Cal.2d 647 [51 Cal.Rptr. 254, 414 P.2d 382], it was applied to new techniques for blood typing. The court held that the trial court had correctly followed the rule stated in Frye, saying: “This is also the rule in California. (See, e.g., People v. Jones (1959) 52 Cal.2d 636, 653 [343 P.2d 577] [‘truth serum‘]; People v. Carter (1957) 48 Cal.2d 737, 752 [312 P.2d 665] [‘lie detector’ test]; cf. People v. Williams (1958) 164 Cal.App.2d Supp. 858, 860-862 [331 P.2d 251] [‘Nalline’ test].)” (64 Cal.2d at p. 654.)
In People v. Kelly, supra, 17 Cal.3d 24, this court reaffirmed its approval of the Frye test as applied to the admissibility of evidence of a “new and emerging technique of speaker identification by spectrographic analysis, commonly described as ‘voiceprint.’ ” (Id., at pp. 27-28.)
None of the “scientific” tests or methods at issue in those cases is in any way comparable to the HGN test as administered by a police officer in the field. The test results and expert opinion based on them were aptly described by the court in People v. Williams, supra, 164 Cal.App.2d Supp. 858, 860-861 [331 P.2d 251], quoting Wigmore: “‘When the testimony thus appearing to the ordinary layperson to lack a rational basis is founded on observations made with esoteric methods or apparatus . . . the method should be explained by the witness, and if it be vouched for as accepted in his branch of learning, it suffices to admit his testimony.’ Wigmore on Evidence, third edition, section 659.”
Here, there is no esoteric method or apparatus. A layperson serving on the jury can readily comprehend the nature of the test and there is no mystery to the means by which the results are evaluated when a police officer testifies based on his training and experience that the subject‘s reaction indicated that the subject was intoxicated. The answer might be different if the officer purported to be able to determine the blood-alcohol level of the suspect on the basis of an HGN test (see People v. Ojeda (1990) 225 Cal.App.3d 404, 409 [275 Cal.Rptr. 472]; People v. Loomis (1984) 156 Cal.App.3d Supp. 1, 6 [203 Cal.Rptr. 767]), but there is nothing in the manner in which a simple
We concluded in People v. Stoll, supra, 49 Cal.3d 1136, 1157, that the expert psychological testimony offered in that case “raises none of the concerns addressed by Kelly/Frye. The methods employed are not new to psychology or the law, and they carry no misleading aura of scientific infallibility.” (Italics omitted.) The same may be said for the HGN test as administered by a police officer in the field as one indicator of possible intoxication. The test is not new. It has been in use since the 1960‘s and was described in medical literature in 1958. (Malone v. City of Silverhill (Ala.Crim.App. 1989) 575 So.2d 101, 103, revd. on other grounds, 575 So.2d 106 (Ala. 1990); Aschan, Different Types of Alcohol Nystagmus (Sweden 1958) 140 Acta Otolaryngol Supp. 69.) It is recommended by the National Highway Traffic Safety Administration to aid in determining if a driver is intoxicated. (City of Fargo v. McLaughlin (N.D. 1994) 512 N.W.2d 700, 703.) Under a contract from the National Highway Traffic Safety Administration to develop the best possible field sobriety tests, Dr. Marcelline Burns of the Southern California Research Institute concluded that the HGN test is the best single index of intoxication. (State v. Superior Court (1986) 149 Ariz. 269 [718 P.2d 171, 173].)
The majority conclude that we should nonetheless deem the HGN test to be new and wait even longer for the scientific community to do further research and achieve a consensus. To the majority the “long-standing use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians.” (Maj. opn., ante, at p. 606.) I disagree. There is no reason to believe that after 30 years the scientific community has any interest in further studies of HGN. For laboratory purposes there are other more accurate tests of blood-alcohol level. The HGN phenomenon was once of interest, but unless it has practical
More impоrtantly, however, the long-standing use by police officers is extremely significant because that is the “laboratory” in which the correlation between HGN and blood-alcohol level has been established. The majority ignore the fact that when an arrest for DUI is made on the basis of field sobriety tests, a blood, breath, or urine test follows. The correlation between DUI arrests in which the HGN reaction was observed by the officer who determined that the suspect was under the influence of alcohol and a subsequent breath, blood, or urine confirmation that the suspect‘s blood-alcohol level exceeds the legal limit is the only testing that should be necessary.
I see no distinction with respect to their complexity, sophistication or scientific “aura” between the HGN test and other field sobriety tests administered to persons suspected of DUI violations. The majority conclude that the HGN test is a scientific procedure in part because the “jury might be unduly swayed by HGN evidence solely by reason of its technical nomenclature.” (Maj. opn., ante, at p. 607.) If so, the name can be changed. Certainly the majority does not mean to hold that the name of a procedure determines whether it is a scientific test subject to the Kelly/Frye requirements. There is no relevant scientific community available to reach a consensus on a nonscientific matter simply because the name of the procedure sounds impressively scientific.
If the HGN test had originated with law enforcement officers rather than the scientific community, and was named simply the “follow the finger test,” and an officer testified that in the officer‘s experience a person under the influence of alcohol or drugs has difficulty in smoothly following a moving finger with his eyes, we would not have this question before us at all. Even if the scientific community does not agree as to the reliability of an HGN test for determining blood-alcohol levels, a police officer who has administered the test many times and has observed a correlation between subsequent tests for blood-alcohol level and the HGN test results is certainly able to testify, based on his experience, that a jerky movement of the eyeballs when the test is administered is a symptom of intoxication. A jury would have no difficulty in comprehending the nature of the test. Indeed, we allow lay opinion testimony regarding both drug and alcohol intoxication because laypersons are sufficiently familiar with the symptoms that they are able to identify them. A layperson may not be aware that the jerking eyeball movement is another symptom, but he or she can easily comprehend the nature of the
The Supreme Court of Minnesota recently held that the HGN test does meet the Frye criteria, but also noted that it is not a new test. It distinguished the question of whether the test itself is a reliable indicator of the presence of drugs from the question of whether an officer may testify regarding an opinion formed on the basis of administration of that test and others to a suspect. (State v. Klawitter (Minn. 1994) 518 N.W.2d 577.)
The court held that the evidence had been properly admitted even though there was not a consensus as to its utility in determining drug impairment because the HGN test was only one element of a twelve-step protocol supportive of a conclusion based on the entire protocol that drug impairment was present. The arresting officer had testified regarding the factors in the protocol that led him to the opinion that the defendant was under the influence of cannabis. The defendant had challenged the reliability of the protocol, but the trial court ruled that the officer could testify concerning the observations made during the protocol and his opinion based on those observations.
The Minnesota Supreme Court upheld the trial court‘s ruling. It reasoned: “[P]roperly viewed, the protocol . . . is not itself a scientific technique but rather a list of the things a prudent, trained, and experienced officer should consider before formulating or expressing an opinion whether the subject is under the influence of some controlled substance. [¶] . . . [¶] Only the tests for horizontal and vertical nystagmus and for convergence are out of the ordinary, but they can hardly be characterized as emerging scientific techniques. Nystagmus and convergence have long been known, and the tests contemplated by the protocol have been in common medical use without change for many years. The tests are simple and do not require the use of complicated equipment. . . . [¶] . . . [¶] . . . It is not contended, however, that the presence or absence of nystagmus is determinative of the presence of drugs, but only that nystagmus, when it is present, may be an element
“The other point of the defense challenge goes to the police officer‘s competence to draw conclusions based on the protocol. Basically, however, following the protocol does not involve any significant scientific skill or training on the part of the officer. Drug recognition training is not designed to qualify police officers as scientists but to train officers as observers. The training is intended to refine and enhance the skill of acute observation which is the hallmark of any good police officer and to focus that power of observation in a particular situation. . . . [T]he protocol . . . dresses in scientific garb that which is not particularly scientific. . . . Moreover, calling the officer an ‘Expert’ [is misleading and] tends to lend weight to the officer‘s opinion. [¶] . . . The real issue is not the admissibility of the evidence but the weight it should receive, and that is a matter for the jury to decide without being led to believe that the evidence is entitled to greater weight than it deserves. . . . [W]e conclude that opinion testimony based on nystagmus testing is admissible if a sufficient foundation has been laid for the opinion expressed and provided that the trial court, when requested, gives an appropriate cautionary instruction.” (518 N.W.2d at pp. 584-586, fns. omitted.)
The Minnesota high court is not alone in concluding that use of a suspect‘s reaction to the HGN test as an indicator of intoxication is not use of a scientific test subject to the Frye criteria as it is no more scientific than other field sobriety tests. (Whitson v. State (1993) 314 Ark. 458 [863 S.W.2d 794, 798]; State v. Edman (Iowa 1990) 452 N.W.2d 169, 170; State v. Murphy (Iowa 1990) 451 N.W.2d 154, 157; State v. Garris (La.Ct.App. 1992) 603 So.2d 277, 282; State v. Nagel, supra, 30 Ohio App.3d 80 [506 N.E.2d 285, 286]; State v. Sullivan (S.C. 1993) 426 S.E.2d 766, 769.) Most recently the North Dakota Supreme Court, in City of Fargo v. McLaughlin, supra, 512 N.W.2d 700, reviewed the scientific literature and cases and concluded that expert testimony regarding HGN is not necessary.
“We begin our analysis by noting that the underlying scientific basis for HGN testing-that intoxicated persons exhibit nystagmus-is undisputed, even by those cases and authorities holding the test inadmissible without scientific proof in each case. State v. Superior Court, 718 P.2d at 177, 181; State v. Witte [(1992) 251 Kan. 313] 836 P.2d at 1112; State v. Garrett [(1991)] [119 Idaho 878] 811 P.2d at 491; State v. Cissne [(1994) 72 Wn.App. 667], 865 P.2d 566; Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. P.O.F.3d 439, 446 (1989). It is generally accepted that a person will show a greater degree of nystagmus at higher levels of
“These principles comprise the only ‘scientific’ components of the HGN test. The officer, based upon his training in these principles, observes the objective physical manifestations of intoxication, and no expert interpretation is required. State v. Murphy, 451 N.W.2d at 157; State v. Nagel, 506 N.E.2d at 286. The test requires simply that the officer observe the subject‘s eyes following a moving object.” (City of Fargo v. McLaughlin, supra, 512 N.W.2d at p. 706.)
The North Dakota high court also relied on the view of the Idaho Supreme Court in State v. Gleason (1992) 119 Idaho 878 [844 P.2d 691, 695], which it quoted (512 N.W.2d at p. 707): “[The officer‘s] testimony relating to the HGN test results was not offered as independent scientifically sound evidence of [the defendant‘s] intoxication. Rather, it was offered and admitted for the same purpose as other field sobriety test evidence-a physical act on the part of [the defendant] observed by the officer contributing to the cumulative portrait of [the defendant] intimating intoxication in the officer‘s opinion. [¶] In sum, we agree with those cases that stress that HGN test results are admissible in conjunction with other field sobriety tests. [Citations.] Where the officer has conducted other field sobriety tests in addition to the HGN test, the results of the HGN test are but one of the physical observations to support the officer‘s opinion that the accused was intoxicated.”
The Supreme Court of Arkansas has reached the same conclusion. No Frye-type hearing is necessary both because it is not a novel scientific procedure and because evidence of an officer‘s observations of a subject‘s reaction to the test is not scientific evidence to which the Frye test is applicable: “HGN testing has been in existence for 35 years and officers are trained in this technique at the State Police Academy. . . . [T]he results of nystagmus testing for purposes of showing some indication of alcohol was not novel scientific evidence requiring a preliminary inquiry. Our opinion, however, might well be different had the officer attempted to quantify blood alcohol content based solely on the HGN test. [¶] In sum, we hold that the results of the HGN test were relevant to show alcohol consumption in conjunction with the results of other field sobriety tests performed.” (Whitson v. State, supra, 863 S.W.2d 794, 798.)
There is simply no reason to restrict testimony such as that given in this case on the basis that the police officer‘s opinion was based on scientific
Officer Von Achen did not testify that the HGN test established that defendant had alcohol or any specific percentage of alcohol in his system at the time of arrest. He testified that defendant‘s reaction to the test and the other factors described above led him to form the opinion that defendant had been driving under the influence of alcohol. I would affirm the judgment of the trial court for that reason alone.
II
ARTICLE I, SECTION 28(d)
An equally important reason why this judgment must be affirmed is that the Kelly/Frye rule excludes relevant evidence which this court does not
The court has repeatedly recognized that Frye excludes relevant evidence. The court did so in People v. Kelly, supra, 17 Cal.3d 24, 30-31, and again in People v. Stoll, supra, 49 Cal.3d 1136, 1156. Yet
The majority hold that what will now be simply ”Kelly” continues to be an appropriate means to ensure that evidence is sufficiently reliable to be admissible under
It is, of course, necessary to engage in that presumption since the Kelly opinion does not address the question. The majority fail to note or acknowledge that Kelly is not the decision in which the Frye test was adopted. Indeed, the Kelly opinion itself states: “We have expressly adopted the foregoing Frye test . . . . (Huntingdon v. Crowley (1966) 64 Cal.2d 647, 653-654 . . . .)” (Kelly, supra, 17 Cal.3d 24, 30.) Huntingdon v. Crowley, supra, while decided in 1966, involved a claim of error in a pre-1965 trial, however, and itself relied on cases decided before the Evidence Code was adopted in 1965. (64 Cal.2d at p. 652, fn. 4.) Thus, this court has never actually or presumptively considered whether the Frye test is compatible with the Evidence Code provisions governing admission of expert testimony.
The majority assert, in support of adherence to the Frye, now Kelly, test, that there have been no significant developments since Kelly was decided to justify abandoning the Frye test. Therefore, the majority conclude, principles of stare decisis apply and the Frye, now Kelly, test is still to be applied
The electorate which adopted
While the Kelly/Frye test may be “appropriate,” it is overinclusive and thus is not permissible under
The majority‘s lack of confidence in the ability of trial judges and juries to weigh the reliability of scientific evidence is doubly ironic because prosecutors themselves accept as dispositive reliable evidence that has not been held admissible under the Kelly/Frye criteria. DNA evidence, for instance, was recently accepted by the San Diego County District Attorney as proof of the innocence of a man convicted of rape and confined in prison for 10 years. (Perry, DNA Test Frees Inmate After 10 Years, L.A. Times (Sept. 29, 1994) p.
The Kelly/Frye test may exclude relevant evidence for many years after the new technique is developed even though a substantial bоdy of experts agrees that the technique is reliable. That may happen here. Although the HGN test has been in use for 30 years, and the literature establishes that it is accepted as reliable by numerous experts whose qualifications to make that judgment are unimpeachable, other experts disagree. On remand, therefore, the trial court may exclude the evidence since the majority hold that the HGN test is still a new technique if the court concludes the test is not yet accepted as reliable by a “consensus” of experts.
We look in vain for the source of such judicial power only to be referred back to the Kelly decision which, we are told, explains why the Frye approach to determining reliability of expert testimony about scientific techniques is appropriate. Unfortunately, Kelly offers no insight into the source of judicial power to exclude relevant evidence. In fact, Kelly acknowledges that the admission of evidence based on new scientific techniques could be left to the trial court “in which event objections, if any, to
Neither the Evidence Code nor
The command of
Therefore, assuming that it was based on a new scientific procedure, the sole basis on which Officer Von Achen‘s testimony could have been excluded in this case was if the HGN test or the testimony regarding its administration and outcome was perceived to be so unreliable that its probative value was substantially outweighed by its potential for prejudice. (
Moreover, as noted earlier, even assuming that the officer‘s opinion regarding defendant‘s intoxication was based in part on the HGN test and those results were improper evidence, the opinion was admissible under
I would reverse the judgment of the Court of Appeal.
Notes
For a comprehensive review of the literature regarding the HGN test see State v. Superior Court, supra, 718 P.2d 171. The Arizona Supreme Court concluded on the basis of that literature and evidence offered in that case that the HGN test is recognized as the most reliable of the roadside field sobriety tests. (Id., at pp. 173, 177.) That court concluded that the test meets the Frye standard because: “The evidence demonstrates that the following propositions have gained general acceptance in the relevant scientific community: (1) HGN occurs in conjunction with alcohol consumption; (2) its onset and distinctness are correlated to BAC [blood-alcohol content]; (3) BAC in excess of .10 percent can be estimated with reasonable accuracy from the combination of the eye‘s tracking ability, the angle of onset of nystagmus and the degree of nystagmus at maximum deviation; and (4) officers can be trained to observe these phenomena sufficiently to estimate accurately whether BAC is above or below .10 percent.” (Id., at p. 181.)