Scientific Evidence

Admissibility: In general

• Indiana Evidence Rule 702(b) governs the admissibility of expert scientific testimony.

Wilkes v. State, 917 N.E.2d 675, 685 (Ind. 2009), reh’g denied, cert. denied, 562 U.S. 981 (2010)

• Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

Evid. R. 702(b)

• For more information about testimony by expert witnesses, please review ?.

• There is “no specific test” that must be considered in order to satisfy Rule 702(b).

Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012), trans. denied(citing West v. State, 805 N.E.2d 909, 913 (Ind. Ct. App. 2004), trans. denied)

See B.H. v. Ind. Dep’t of Child Servs., 989 N.E.2d 355, 362 (Ind. Ct. App. 2013)(citing Troxell v. State, 778 N.E.2d 811, 815 (Ind. 2002))(“Under Indiana Evidence Rule 702, no specific test is required to establish a scientific process's reliability.”)

See also Overstreet v. State, 783 N.E.2d 1140, 1150 (Ind. 2003), cert. denied, 540 U.S. 1150 (2004)(“Indiana does not recognize a test or specific set of elements to satisfy reliability of a process under the rules of evidence.”)

• Rather, reliability may be established by judicial notice or, in its absence, by sufficient foundation to convince the trial court that the relevant scientific principles are reliable.

Doolin v. State, 970 N.E.2d 785, 788 (Ind. Ct. App. 2012), trans. denied(citing West v. State, 805 N.E.2d 909, 913 (Ind. Ct. App. 2004), trans. denied)

See Bond v. State, 925 N.E.2d 773, 779 (Ind. Ct. App. 2010), reh’g denied, trans. denied(citing Malinski v. State, 794 N.E.2d 1071, 1084 (Ind. 2003))(“The reliability of expert scientific evidence may be established by judicial notice or a sufficient foundation to persuade the trial court that the relevant scientific principles are reliable.”)

See also West v. State, 755 N.E.2d 173, 181 (Ind. 2001)(citing McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997))(“Reliability may be established by judicial notice or by the proponent of the scientific testimony providing sufficient foundation to convince the trial court that the scientific principles are reliable.”)

See also Wilkes v. State, 917 N.E.2d 675, 685 (Ind. 2009), reh’g denied, cert. denied, 562 U.S. 981 (2010)(citing Malinski v. State, 794 N.E.2d 1071, 1084 (Ind. 2003))(“Reliability of a test may be established by judicial notice or by a sufficient foundation to establish reliability.”)

• For information about judicial notice, please review Judicial Notice.

• When laying a sufficient foundation, the focus must be on the principles and methodology behind the science rather than the conclusions generated.

Admissibility: Assessing the reliability of expert scientific evidence

• In cases governed by Rule 702(b), Indiana courts assess the reliability of expert scientific evidence by considering the factors set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) . . . .

Mogg v. State, 918 N.E.2d 750, 756 (Ind. Ct. App. 2009)

See Bond v. State, 925 N.E.2d 773, 779 (Ind. Ct. App. 2010), reh’g denied, trans. denied(“Indiana courts assess the reliability of expert scientific evidence by considering the factors set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).”)

• The United States Supreme Court's Daubert decision, coincidentally handed down just weeks after Indiana's Rule 702(b) was adopted, interpreted Federal Rule of Evidence 702 as requiring that expert testimony “be supported by appropriate validation—i.e., ‘good grounds,’ based on what is known,” and as “establish[ing] a standard of evidentiary reliability.” The concerns driving Daubert coincide with the express requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. Thus, although not binding upon the determination of state evidentiary law issues, the federal evidence law of Daubert and its progeny is helpful to the bench and bar in applying Indiana Rule of Evidence 702(b).

Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995), reh’g denied(quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993))

Bond v. State, 925 N.E.2d 773, 779 (Ind. Ct. App. 2010), reh’g denied, trans. denied(quoting Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995), reh’g denied)

Mogg v. State, 918 N.E.2d 750, 756 (Ind. Ct. App. 2009)(quoting Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995), reh’g denied)(alteration in original)(“The concerns driving Daubert [interpreting Federal Rule of Evidence 702] coincide with the express requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. Thus, although not binding upon the determination of state evidentiary law issues, the federal evidence law of Daubert and its progeny is helpful to the bench and bar in applying Indiana Rule of Evidence 702(b).”)

Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003)(citations omitted)(“This court has held that the concerns driving Daubert coincide with the express requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. Thus, although not binding upon the determination of the state evidentiary law issues, the federal evidence law of Daubert and its progeny is helpful to the bench and bar in applying Indiana Rule of Evidence 702(b).”)

• The Daubert factors include whether the scientific theory or technique (1) can be and has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential error rate; (4) is governed by maintained standards controlling its operation; and (5) has gained widespread acceptance in a relevant scientific community.

Bond v. State, 925 N.E.2d 773, 779 (Ind. Ct. App. 2010), reh’g denied, trans. denied(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993))

Mogg v. State, 918 N.E.2d 750, 756 (Ind. Ct. App. 2009)(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993))

West v. State, 805 N.E.2d 909, 913 (Ind. Ct. App. 2004), trans. denied(citing Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 551 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied, 529 U.S. 1021 (2000)) (“Though not presuming to set out a definitive checklist or test regarding factors that bear on the reliability inquiry, the Daubert court outlined five key considerations: (1) whether the theory or technique at issue can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique is generally accepted within the relevant scientific community.”)

• Although all of these factors and others may be relevant, none is by itself dispositive, and not all need be present for a trial court to find the proffered evidence rests upon reliable principles.

Bond v. State, 925 N.E.2d 773, 779 (Ind. Ct. App. 2010), reh’g denied, trans. denied

Mogg v. State, 918 N.E.2d 750, 756 (Ind. Ct. App. 2009)

• [G]eneral acceptance is not a prerequisite to a finding of scientific reliability under Rule 702(b) . . . .

Mogg v. State, 918 N.E.2d 750, 758 (Ind. Ct. App. 2009)

• Moreover, this Court does not recognize Frye v. United States, 293 F. 1013 (D.C. 1923) as a requirement under the Indiana Rules of Evidence.

Newhart v. State, 669 N.E.2d 953, 955 (Ind. 1996)(citing Evid. R. 403 & Evid. R. 702)

Admissibility: After a determination of reliability

• Once the reliability of a particular scientific process is established and an expert's qualifications to carry out the testing are not in doubt, questions as to how an expert personally carried out the testing in a particular case generally go to the weight of the evidence, not its foundational admissibility.

Kennedy v. State, 934 N.E.2d 779, 785 (Ind. Ct. App. 2010)(citing Ingram v. State, 699 N.E.2d 261, 263 n. 7 (Ind. 1998))

See Napier v. State, 827 N.E.2d 565, 567 (Ind. Ct. App. 2005), trans. denied, cert. denied, 546 U.S. 1215 (2006)(citing McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997))(“[O]nce a trial court has determined that a particular scientific technique is capable of producing reliable results, questions regarding the reliability of the testing procedure—or its results—go to the weight of the scientific testimony and not to its admissibility.”)

• It is only when there are substantial irregularities in a testing process that the line may be crossed into the results being inadmissible.

Kennedy v. State, 934 N.E.2d 779, 785-86 (Ind. Ct. App. 2010)

See Smith v. State, 702 N.E.2d 668, 673 (Ind. 1998)(quoting Davidson v. State, 580 N.E.2d 238, 143 (Ind. 1991))(“While a case may exist wherein ‘substantial irregularities [in the testing procedures] would be a basis for prohibiting admission of test results,’ in general, any irregularities go to the weight of the evidence, not its admissibility.”)

Admissibility: Weighing probative value against the risk of unfair prejudice

• Expert scientific testimony is admissible only if “the scientific principles upon which the expert testimony rests are reliable, and the testimony's probative value is not substantially outweighed by the danger of unfair prejudice.”

Haycraft v. State, 760 N.E.2d 203, 210 (Ind. Ct. App. 2001), reh’g denied, trans. denied(quoting Smith v. State, 702 N.E.2d 668, 672 (Ind.1998))(emphasis added)

Admissibility: Burden of proof

• The proponent of expert testimony bears the burden of establishing the foundation and reliability of the scientific principles.

Doolin v. State, 970 N.E.2d 785, 788 (Ind. Ct. App. 2012), trans. denied(citing McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997))

• [T]he proponent of the expert scientific testimony bears the burden of persuading the trial court it is more likely than not that the scientific principles upon which the testimony rests are reliable.

Bond v. State, 925 N.E.2d 773, 779 (Ind. Ct. App. 2010), reh’g denied, trans. denied(citing Burnett v. State, 815 N.E.2d 201, 206 (Ind. Ct. App. 2004), reh’g denied)

Mogg v. State, 918 N.E.2d 750, 756 (Ind. Ct. App. 2009)(citing Burnett v. State, 815 N.E.2d 201, 206 (Ind. Ct. App. 2004), reh’g denied)

Examples from case law

• ACE-V, which is a fingerprint identification methodology, and which is an acronym for “analysis, comparison, evaluate, and verify,” was sufficiently reliable for purposes of the rule governing expert scientific evidence.

See Burnett v. State, 815 N.E.2d 201, 208 (Ind. Ct. App. 2004), reh’g denied(“[T]he State established that the ACE–V methodology is generally accepted within [the latent fingerprint examiner’s] relevant field of study and that it is more likely than not that the scientific principles upon which the testimony rests are reliable.”)

• For information about the inferences that can be drawn from fingerprints, please review Fingerprints.

• For more information about fingerprints, including the admissibility of fingerprints, please review Fingerprints.

• [The Polymerase Chain Reaction (“PCR”)] method, through which small DNA samples can be “amplified” in order to permit testing, has passed general muster in Indiana for scientific reliability and admissibility in evidence at trial.

Kennedy v. State, 934 N.E.2d 779, 785 (Ind. Ct. App. 2010)(citing Ingram v. State, 699 N.E.2d 261, 263 (Ind. 1998))

• [W]e conclude that the trial court was well within its discretion in finding the scientific principles of STR testing to be reliable and generally accepted in the relevant scientific community.

Troxell v. State, 778 N.E.2d 811, 816 (Ind. 2002)

See Overstreet v. State, 783 N.E.2d 1140, 1150 (Ind. 2003), cert. denied, 540 U.S. 1150 (2004)(citing Troxell v. State, 778 N.E.2d 811, 815-16 (Ind. 2002))(“In Troxell, this court found that STR testing is generally regarded as reliable as both the scientific literature and a multitude of state courts have similarly concluded.”)

• For information about DNA evidence, please review DNA.