Frye test in California

2024The Frye test was not designed to eliminate reliance upon scientific evidence, but to retard its admissibility until the scientific community has had ample opportunity to study, evaluate and accept its reliability. [Citation.] Although the present record is insufficient to justify the admissibility of voiceprint evidence, the future proponent of such evidence may well be able to demonstrate in a satisfactory manner that the voiceprint technique has achieved that required general acceptance in the scientific community.” ( Kelly, supra, 17 Cal.3d at pp. 40–41.) The Kelly rule requires that it be

2024The Frye test was not designed to eliminate reliance upon scientific evidence, but to retard its admissibility until the scientific community has had ample opportunity to study, evaluate and accept its reliability. [Citation.] Although the present record is insufficient to justify the admissibility of voiceprint evidence, the future proponent of such evidence may well be able to demonstrate in a satisfactory manner that the voiceprint technique has achieved that required general acceptance in the scientific community.” ( Kelly, supra, 17 Cal.3d at pp. 40–41.) The Kelly rule requires that it be

2023Cir. 1923) 293 F. 1013 (the Kelly/Frye test).

2022Cir. 1923) 293 F. 1013 has been supplanted in federal jurisprudence, the foundational requirement formerly referred to as the Kelly/Frye test is now simply referred to as the Kelly test].) Under the Kelly test, expert testimony that relies on a new scientific technique is inadmissible unless the proponent of the evidence satisfies three criteria, also referred to as three prongs: “ ‘(1) the reliability of the new technique has gained general acceptance in the relevant scientific community, (2) the expert testifying to that effect is qualified to give an opinion on the subject, and (3) the corr

2026(N.J. 2018) 234 N.J. 265, 301 [“we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community”].) In conclusion, because Garcia does not establish that CSAAS evidence is based on methods that are “new to psychology or the law” and that the evidence carried a “misleading aura of scientific infallibility” (see Stoll, supra, 49 Cal.3d at p. 1157 ; accord, Peterson, supra, 10 Cal.5th at pp. 457–458), we find that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without first conducting a Kelly test.

2026(N.J. 2018) 234 N.J. 265, 301 [“we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community”].) In conclusion, because Garcia does not establish that CSAAS evidence is based on methods that are “new to psychology or the law” and that the evidence carried a “misleading aura of scientific infallibility” (see Stoll, supra, 49 Cal.3d at p. 1157 ; accord, Peterson, supra, 10 Cal.5th at pp. 457–458), we find that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without first conducting a Kelly test.

2021(Ibid.; see People v. Harlan (1990) 222 Cal.App.3d 439 , 448–449 [Kelly/Frye rule does not apply to CSAAS opinion based on expert’s clinical experience and professional literature].) We agree with these cases and see no reason to depart from them, as Alexander urges us to do.

2021In People v. Harlan (1990) 222 Cal.App.3d 439, 448-450 , the Court of Appeal concluded that CSAAS is not scientific evidence subject to the Kelly/Frye rule.

2021(People v. Shirley (1982) 31 Cal.3d 18, 51-57 , citing Frye, supra, 293 F. 1013 and Kelly, supra, 17 Cal.3d at p. 30 .) The Kelly/Frye test is a “special restriction[] governing admission of new, novel, or experimental scientific techniques not previously accepted in the courts.” (People v. Stoll (1989) 49 Cal.3d 1136, 1140-1141 .) Under the Kelly/Frye test, a proponent of novel or experimental scientific evidence must show that the expert’s methodology has gained general acceptance within the scientific community and that the witness is qualified to render an expert opinion.

2010Cir. 1923) 54 U.S. App.D.C. 46 [ 293 F. 1013 ]. ( Shirley, supra, 31 Cal.3d at p. 66 .) The touchstone of the Frye test, and our holding in Shirley , is the "reliability" of the proffered scientific evidence. ( People v. Kelly (1976) 17 Cal.3d 24, 40 [ 130 Cal.Rptr. 144 , 549 P.2d 1240 ].) When a witness actually has not been hypnotized in any meaningful way, despite attempts to do so, the concerns expressed in Shirley regarding reliability of the witness's testimony, namely, introduction of false memories and the tendency for the witness to develop unjustified confidence in recollections, are

1991(People v. Brown (1985) 40 Cal.3d 512, 529 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ].) Under the Kelly/Frye rule, the proponent must establish the reliability of the method, usually by expert testimony, that the witness furnishing the testimony is properly qualified as an expert to give an opinion on the subject, and that correct scientific procedures were used in the particular case.

1989(See e.g., People v. Coleman (1988) 46 Cal.3d 749, 774-775 [ 251 Cal. Rptr. 83 , 759 P.2d 1260 ] ["hemostick" method of presumptive testing for presence of blood]; People v. Brown (1985) 40 Cal.3d 512, 528-535 [ 220 Cal. Rptr. 637 , 709 P.2d 440 ] [electrophoretic testing of body fluid and blood stains to identify donor]; see also People v. Shirley (1982) 31 Cal.3d 18, 51-52 [ 181 Cal. Rptr. 243 , 723 P.2d 1354 ] [listing cases which have applied the Frye test to polygraph examinations, "truth serum," Nalline testing, human bite marks, and microscopic identification of gunshot residue particle

2026(N.J. 2018) 234 N.J. 265, 301 [“we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community”].) In conclusion, because Garcia does not establish that CSAAS evidence is based on methods that are “new to psychology or the law” and that the evidence carried a “misleading aura of scientific infallibility” (see Stoll, supra, 49 Cal.3d at p. 1157 ; accord, Peterson, supra, 10 Cal.5th at pp. 457–458), we find that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without first conducting a Kelly test.

2026(N.J. 2018) 234 N.J. 265, 301 [“we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community”].) In conclusion, because Garcia does not establish that CSAAS evidence is based on methods that are “new to psychology or the law” and that the evidence carried a “misleading aura of scientific infallibility” (see Stoll, supra, 49 Cal.3d at p. 1157 ; accord, Peterson, supra, 10 Cal.5th at pp. 457–458), we find that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without first conducting a Kelly test.

2021(Kelly, at p. 30.) For many years, the test was referred to in California as the “‘Kelly/Frye’ test.” (People v. Diaz (1992) 3 Cal.4th 495, 525 .) The Frye test was later “superseded by the adoption of the Federal Rules of Evidence.” (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587 .) Our Supreme Court has since indicated the test is “now more accurately” called the “Kelly formulation.” (People v. Leahy (1994) 8 Cal.4th 587, 591 .) Accordingly, we will refer to it as such or the Kelly rule. 10 Trial Court Proceedings Prior to trial, the prosecution moved to admit expert t

2021ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] BY THE COURT: It is ordered that the opinion filed herein on February 24, 2021, be modified as follows: On page 38, after the last sentence in the disposition that begins with with “The matter is remanded . . . .”, add the following: Following People v. Leahy (1994) 8 Cal.4th 587 , we direct the trial court to conduct a Kelly/Frye hearing regarding count 5 in accordance with our opinion.

2015However, in People v. Soto (1999) 21 Cal.4th 512, 515 , footnote 3, the California Supreme Court explained that as Frye had been supplanted in federal jurisprudence, the foundational test formerly referred to as the Kelly/Frye test is now referred to as the Kelly test. 6 As the trial court explained to Mackey’s counsel at the evidentiary hearing, instead of a tracking device, assume the teller had placed a blue rock inside a robbery suspect’s bag of stolen money before the suspect fled from the bank.

2006While it is now referred to as the Kelly test (ibid.; People v. Soto (1999) 21 Cal.4th 512, 515, fn. 3 [ 88 Cal.Rptr.2d 34 , 981 P.2d 958 ]), we shall occasionally use the Kelly-Frye designation for consistency with prior case law (see People v. Mitchell (2003) 110 Cal.App.4th 772, 782, fn. 1 [ 2 Cal.Rptr.3d 49 ]). 3 The owner of the pickup was Robert Calkins, a Caucasian male then in his late 30’s, with long hair and a full brown beard.

1997The courts have consistently held that whether the test is a polygraph test, or a sodium amytal or sodium pentothal test, the results are not such as to be admissible for or against the defendant because of a lack of scientific certainty about the results. [Citations.]” (Italics added.) 9 Although Jones did not cite Frye by name, 10 the California Supreme Court later explained in Huntingdon v. Crowley (1966) 64 Cal.2d 647 , *117 653-654 [ 51 Cal.Rptr. 254 , 414 P.2d 382 ], that it had applied the Frye test in Jones , stating: “ ‘Just when a scientific principle or discovery crosses the line be

1997The courts have consistently held that whether the test is a polygraph test, or a sodium amytal or sodium pentothal test, the results are not such as to be admissible for or against the defendant because of a lack of scientific certainty about the results. [Citations.]” (Italics added.) 9 Although Jones did not cite Frye by name, 10 the California Supreme Court later explained in Huntingdon v. Crowley (1966) 64 Cal.2d 647 , *117 653-654 [ 51 Cal.Rptr. 254 , 414 P.2d 382 ], that it had applied the Frye test in Jones , stating: “ ‘Just when a scientific principle or discovery crosses the line be

2026J. such as “mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination”]; People v. Cooper (1991) 53 Cal.3d 771, 814 (Cooper) [“ ‘[T]he Kelly/Frye rule tests the fundamental validity of a new scientific methodology, not the degree of professionalism with which it is applied,’ ” such that “ ‘[c]areless testing affects the weight of the evidence and not its admissibility’ ”].) And if the People prevail at a Kelly hearing, they must still present evidence at trial concerning the technique and its application in the case, at which time a defendant’s f

2001(E.g., People v. Bury (1996) 41 Cal.App.4th 1194, 1202 [ 49 Cal.Rptr.2d 107 ] [Kelly/Frye hearing not required for latest field version of breath testing device]; People v. Cooper (1991) 53 Cal.3d 771, 812-813 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [once electrophoresis testing is admitted by a court, criticism of specific methodology goes to weight of the evidence]; People v. Smith (1989) 215 Cal.App.3d 19, 26-27, fn. 4 [ 263 Cal.Rptr. 678 ] [electrophoresis testing of dried bloodstains]; People v. Venegas, supra, 18 Cal.4th at pp. 78-79 [basic RFLP methodology for DNA tests used in different te

1996(People v. Morris (1991) 53 Cal.3d 152, 206 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ].) The trial court found the technique used here was not a new scientific procedure that would trigger a Kelly/Frye hearing.

1996(People v. Morris (1991) 53 Cal.3d 152, 206 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ].) The trial court found the technique used here was not a new scientific procedure that would trigger a Kelly/Frye hearing.

2023(Bledsoe, at p. 251; see Bowker, supra, 203 Cal.App.3d at p. 391 .) The court held the “rape-trauma syndrome” did not meet the Kelly/Frye requirement because it was “not relied on in [the scientific] community for the purpose for which the prosecution sought to use it ….” ( Bledsoe, supra, at p. 251 ; see Bowker, supra, at p. 391 .) “Expert testimony that the complaining witness was suffering from rape trauma syndrome was inadmissible to show a rape had actually occurred because the syndrome was developed as a ‘therapeutic tool’ and not to determine the ‘“truth” or “accuracy” of a particular p

2023(Bledsoe, at p. 251; see Bowker, supra, 203 Cal.App.3d at p. 391 .) The court held the “rape-trauma syndrome” did not meet the Kelly/Frye requirement because it was “not relied on in [the scientific] community for the purpose for which the prosecution sought to use it ….” ( Bledsoe, supra, at p. 251 ; see Bowker, supra, at p. 391 .) “Expert testimony that the complaining witness was suffering from rape trauma syndrome was inadmissible to show a rape had actually occurred because the syndrome was developed as a ‘therapeutic tool’ and not to determine the ‘“truth” or “accuracy” of a particular p

2023(Bledsoe, at p. 251; see Bowker, supra, 203 Cal.App.3d at p. 391 .) The court held the “rape-trauma syndrome” did not meet the Kelly/Frye requirement because it was “not relied on in [the scientific] community for the purpose for which the prosecution sought to use it ….” ( Bledsoe, supra, at p. 251 ; see Bowker, supra, at p. 391 .) “Expert testimony that the complaining witness was suffering from rape trauma syndrome was inadmissible to show a rape had actually occurred because the syndrome was developed as a ‘therapeutic tool’ and not to determine the ‘“truth” or “accuracy” of a particular p

2023(Bledsoe, at p. 251; see Bowker, supra, 203 Cal.App.3d at p. 391 .) The court held the “rape-trauma syndrome” did not meet the Kelly/Frye requirement because it was “not relied on in [the scientific] community for the purpose for which the prosecution sought to use it ….” ( Bledsoe, supra, at p. 251 ; see Bowker, supra, at p. 391 .) “Expert testimony that the complaining witness was suffering from rape trauma syndrome was inadmissible to show a rape had actually occurred because the syndrome was developed as a ‘therapeutic tool’ and not to determine the ‘“truth” or “accuracy” of a particular p

2015(People v. McDonald (1984) 37 Cal.3d 351, 373 [ 208 Cal.Rptr. 236 , 690 P.2d 709 ]; People v. Ward (1999) 71 Cal.App.4th 368, 373 [ 83 Cal.Rptr.2d 828 ].) The Kelly/Frye test requires a party seeking to introduce expert testimony relying on “a new scientific technique” to show “general acceptance of the new technique in the relevant scientific community” and the witness’s qualification as an expert and use of “[the] correct scientific procedures” in employing the technique.

2015(People v. McDonald (1984) 37 Cal.3d 351, 373 [ 208 Cal.Rptr. 236 , 690 P.2d 709 ]; People v. Ward (1999) 71 Cal.App.4th 368, 373 [ 83 Cal.Rptr.2d 828 ].) The Kelly/Frye test requires a party seeking to introduce expert testimony relying on “a new scientific technique” to show “general acceptance of the new technique in the relevant scientific community” and the witness’s qualification as an expert and use of “[the] correct scientific procedures” in employing the technique.

2026(N.J. 2018) 234 N.J. 265, 301 [“we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community”].) In conclusion, because Garcia does not establish that CSAAS evidence is based on methods that are “new to psychology or the law” and that the evidence carried a “misleading aura of scientific infallibility” (see Stoll, supra, 49 Cal.3d at p. 1157 ; accord, Peterson, supra, 10 Cal.5th at pp. 457–458), we find that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without first conducting a Kelly test.

2026(N.J. 2018) 234 N.J. 265, 301 [“we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community”].) In conclusion, because Garcia does not establish that CSAAS evidence is based on methods that are “new to psychology or the law” and that the evidence carried a “misleading aura of scientific infallibility” (see Stoll, supra, 49 Cal.3d at p. 1157 ; accord, Peterson, supra, 10 Cal.5th at pp. 457–458), we find that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without first conducting a Kelly test.

2001(E.g., People v. Bury (1996) 41 Cal.App.4th 1194, 1202 [ 49 Cal.Rptr.2d 107 ] [Kelly/Frye hearing not required for latest field version of breath testing device]; People v. Cooper (1991) 53 Cal.3d 771, 812-813 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [once electrophoresis testing is admitted by a court, criticism of specific methodology goes to weight of the evidence]; People v. Smith (1989) 215 Cal.App.3d 19, 26-27, fn. 4 [ 263 Cal.Rptr. 678 ] [electrophoresis testing of dried bloodstains]; People v. Venegas, supra, 18 Cal.4th at pp. 78-79 [basic RFLP methodology for DNA tests used in different te

2001(E.g., People v. Bury (1996) 41 Cal.App.4th 1194, 1202 [ 49 Cal.Rptr.2d 107 ] [Kelly/Frye hearing not required for latest field version of breath testing device]; People v. Cooper (1991) 53 Cal.3d 771, 812-813 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [once electrophoresis testing is admitted by a court, criticism of specific methodology goes to weight of the evidence]; People v. Smith (1989) 215 Cal.App.3d 19, 26-27, fn. 4 [ 263 Cal.Rptr. 678 ] [electrophoresis testing of dried bloodstains]; People v. Venegas, supra, 18 Cal.4th at pp. 78-79 [basic RFLP methodology for DNA tests used in different te

2020“Under the Kelly/Frye test, when expert testimony based on a new scientific technique is offered, the proponent of the testimony must first establish the reliability of the method and the qualifications of the witness. ‘Reliability of the evidence is established by showing “the procedure has been generally accepted . . . in the scientific community in which it developed . . . .” ’ ” (People v. Harlan (1990) 222 Cal.App.3d 439, 448 .) But here we are not dealing with new experimental scientific evidence “ ‘not previously accepted in court.’ ” (People v. Harlan, supra, 222 Cal.App.3d at p. 449 ;

1989We have never applied the Kelly/Frye rule to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, or even the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association ( People v. Phillips (1981) 122 Cal. App.3d 69, 86-87 [ 175 Cal. Rptr. 703 ] (`Munchausen's syndrome by proxy'))." ( McDonald, supra, 37 Cal.3d at pp. 372-373.) (8b) The psychological testimony proffered here raises none of the

2021Under Kelly/Frye, “ ‘when faced with a novel method of [scientific] proof,’ ” our Supreme Court requires “ ‘a preliminary showing of general acceptance of the new technique in the relevant scientific community’ before 14 the scientific evidence may be admitted at trial.” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 831 .) As our Supreme Court has also instructed, “Because the inventions and discoveries which could be considered ‘scientific’ have become virtually limitless in the near-70 years since Frye was decided, application of its principle has often been determined by reference t

2021We must determine whether, when the prosecutor introduced the Shotspotter evidence through Officer Rosin for the purpose of proving that Hardy fired seven shots, which could only mean that he used a semi- automatic firearm, the court should have revisited whether Shotspotter’s technology met the Kelly/Frye standard. 15 Under Kelly/Frye, “ ‘when faced with a novel method of [scientific] proof,’ ” our Supreme Court requires “ ‘a preliminary showing of general acceptance of the new technique in the relevant scientific community’ before the scientific evidence may be admitted at trial.” (People v.

2021(Kelly, at p. 30.) For many years, the test was referred to in California as the “‘Kelly/Frye’ test.” (People v. Diaz (1992) 3 Cal.4th 495, 525 .) The Frye test was later “superseded by the adoption of the Federal Rules of Evidence.” (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587 .) Our Supreme Court has since indicated the test is “now more accurately” called the “Kelly formulation.” (People v. Leahy (1994) 8 Cal.4th 587, 591 .) Accordingly, we will refer to it as such or the Kelly rule. 10 Trial Court Proceedings Prior to trial, the prosecution moved to admit expert t

2021(Kelly, at p. 30.) For many years, the test was referred to in California as the “‘Kelly/Frye’ test.” (People v. Diaz (1992) 3 Cal.4th 495, 525 .) The Frye test was later “superseded by the adoption of the Federal Rules of Evidence.” (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587 .) Our Supreme Court has since indicated the test is “now more accurately” called the “Kelly formulation.” (People v. Leahy (1994) 8 Cal.4th 587, 591 .) Accordingly, we will refer to it as such or the Kelly rule. 10 Trial Court Proceedings Prior to trial, the prosecution moved to admit expert t

2024(People v. Diaz (1992) 3 Cal.4th 495 , 527–528 (Diaz).) In Diaz, the defendant was a nurse who killed “12 patients by injecting them with massive overdoses of lidocaine, a drug commonly used in hospitals to control rhythm disturbances in the 10 heart.” (Id. at p. 517.) At a capital murder trial, prosecution experts testified about the effects of lidocaine over the defendant’s objections on two grounds: “‘lack of foundation’” and “hearsay.” (Id. at p. 527.) On direct appeal, defendant argued that “the testimony of the prosecution’s experts did not satisfy the Kelly/Frye test.” (Id. at p. 526.)

2024(People v. Diaz (1992) 3 Cal.4th 495 , 527–528 (Diaz).) In Diaz, the defendant was a nurse who killed “12 patients by injecting them with massive overdoses of lidocaine, a drug commonly used in hospitals to control rhythm disturbances in the 10 heart.” (Id. at p. 517.) At a capital murder trial, prosecution experts testified about the effects of lidocaine over the defendant’s objections on two grounds: “‘lack of foundation’” and “hearsay.” (Id. at p. 527.) On direct appeal, defendant argued that “the testimony of the prosecution’s experts did not satisfy the Kelly/Frye test.” (Id. at p. 526.)

2023(See In re Sara M. (1987) 194 Cal.App.3d 585, 25 . 593; Seering v. Department of Social Services (1987) 194 Cal.App.3d 298 , 310–311, 313; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099 ; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1069 .) As long as CSAAS evidence is not admitted for the purpose of being a predictor of child abuse or a diagnostic tool of abuse but offered in rebuttal to explain the unusual behavior of the complainant, then it does not involve the Kelly/Frye test.

2002Such factors, however, do not necessarily preclude the application of the Kelly/Frye rule. ( Seering v. Dept. of Social Services (1987) 194 Cal.App.3d 298, 313 , 239 Cal.Rptr. 422 [doctrine was applicable in a state administrative hearing to revoke a day care operator's license.].) Yet, at least one court has adopted the Attorney General's position. ( Carter v. State (Ind.1999) 706 N.E.2d 552, 553-554 .) But we need not decide the general applicability of this doctrine to probation revocation hearings because this case does not involve a new scientific technique.