scientific principle in New York

2016The Frye Standard The Frye test considers the “question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” (People v Wesley, 83 NY2d 417, 422 [1994]; see also Parker v Mobil Oil Corp., 7 NY3d 434 [2006].) The scientific principle “must be recognized” and “sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Wesley at 422-424 [emphasis omitted], quoting Frye.) “The Frye test emphasizes ‘counting scientists’ votes, rather than on verifying the soundness

2016The Frye Standard The Frye test considers the “question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” (People v Wesley, 83 NY2d 417, 422 [1994]; see also Parker v Mobil Oil Corp., 7 NY3d 434 [2006].) The scientific principle “must be recognized” and “sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Wesley at 422-424 [emphasis omitted], quoting Frye.) “The Frye test emphasizes ‘counting scientists’ votes, rather than on verifying the soundness

1992Somewhere 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.” In People v Middleton ( 54 NY2d 42, 49 ), the Court of Appeals held that "the test is not whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally accepted as reliable

1992Somewhere 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.” (Supra, at 1014; see, People v Hughes, 59 NY2d 523, 537 [1983]; People v Leone, 25 NY2d 511 [1969]; People v Allweiss, 48 NY2d 40, 50 [1979].) It was held in People v Middleton ( 54 NY2d 42, 49 [1981]) that "the test is no

2019"It emphasizes counting scientists' votes, rather than on verifying the soundness of a scientific conclusion" ( Parker v Mobil Oil Corp. , 7 NY3d 434, 447 [2006] [internal quotation marks and citation omitted]).

2016The Frye Standard The Frye test considers the “question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” (People v Wesley, 83 NY2d 417, 422 [1994]; see also Parker v Mobil Oil Corp., 7 NY3d 434 [2006].) The scientific principle “must be recognized” and “sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Wesley at 422-424 [emphasis omitted], quoting Frye.) “The Frye test emphasizes ‘counting scientists’ votes, rather than on verifying the soundness

2019"That protocol requires that expert testimony be based on a scientific principle or procedure which has been sufficiently established to have gained general acceptance in the particular field in which it belongs" ( People v Wernick , 89 NY2d 111, 115 [1996] [internal quotation marks, emphasis and citations omitted]).

2019"That protocol requires that expert testimony be based on a scientific principle or procedure which has been sufficiently established to have gained general acceptance in the particular field in which it belongs" ( People v Wernick , 89 NY2d 111, 115 [1996] [internal quotation marks, emphasis and citations omitted]).

2016The proponent will also typically reference learned scientific treatises, published papers, books or other learned writings demonstrating acceptance of the scientific principle within the applicable scientific community (see People v Hughes, 59 NY2d 523 [1983]).

1992Somewhere 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.” (Supra, at 1014; see, People v Hughes, 59 NY2d 523, 537 [1983]; People v Leone, 25 NY2d 511 [1969]; People v Allweiss, 48 NY2d 40, 50 [1979].) It was held in People v Middleton ( 54 NY2d 42, 49 [1981]) that "the test is no

2013A court may find a scientific test reliable based on general acceptance as shown through judicial opinions (see Matter of Lahey, 71 NY2d at 141 ).

2012A court may find a scientific test reliable based on general acceptance as shown through judicial opinions (Matter of Lahey v Kelly, 71 NY2d 135, 141 [1987]).

2007As set forth in Frye v United States (293 F 1013, 1014 [1923]), “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.” We conclude on the record before us that the theory of causation set forth by plaintiffs expert surgeon and treating surgeon is not premised on novel science but, rather, is premised on “generally accepted scientific principles and existing data” (Zit

2006(See Zito v Zabarsky, 28 AD3d 42 [2d Dept 2006]; People v Kanani, 272 AD2d 186 [1st Dept 2000], lv denied 95 NY2d 935 [2000].) 44 The Frye decision itself recognized that it is not always easy to define precisely when a scientific principle or discovery crosses the line from the experimental to the demonstrable stage, referring to this grey area as “this twilight zone.” (Frye v United States, 293 F at 1014.) It is important to appreciate, however, that it is not the responsibility of a trial judge under Frye to determine whether or not a novel scientific theory, principle or procedure is in fa

1992Somewhere 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.” (Supra, at 1014; see, People v Hughes, 59 NY2d 523, 537 [1983]; People v Leone, 25 NY2d 511 [1969]; People v Allweiss, 48 NY2d 40, 50 [1979].) It was held in People v Middleton ( 54 NY2d 42, 49 [1981]) that "the test is no

1992Somewhere 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.” Notwithstanding increasing criticism of the Frye standard, at least as applicable to so-called "soft sciences,” (Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Co

2014However, as noted above, the purpose of a Frye hearing is to determine whether a scientific principle or procedure is generally accepted in the relevant field, and it is not for the court to verify the soundness of scientific conclusions (People v Wesley, Marsh v Smyth, 12 AD3d at 311).

2011Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions” (Zito v Zabarsky, 28 AD3d at 44 [internal quotation marks omitted]; see Marsh v Smyth, 12 AD3d 307, 311 [2004, Saxe, J., concurring] [the “Frye test emphasizes ‘counting scientists’ votes, rather than . . . verifying the soundness of a scientific conclusion” (some internal quotation marks omitted)]).

2020Significantly, the People were unable to cite any New York appellate cases, or out-of-state case law, assessing the general acceptance of LCN evidence (cf. People v Middleton, 54 NY2d 42, 49 [1981]; People v Magri, 3 NY2d 562, 566 [1958]).

2009New York courts have consistently subscribed to the Frye standard in determining the admissibility of scientifically derived evidence, such as authorizing the introduction of automobile speed evidence obtained with radar (People v Magri, 3 NY2d 562 [1958]; see also People v Dusing, 5 NY2d 126 [1959]) and analyzing breath by means of infrared energy and electrical current (People v Jones, 118 Misc 2d 687, 695 [Albany County Ct 1983, Harris, J.]).

1992Somewhere 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.” (Supra, at 1014; see, People v Hughes, 59 NY2d 523, 537 [1983]; People v Leone, 25 NY2d 511 [1969]; People v Allweiss, 48 NY2d 40, 50 [1979].) It was held in People v Middleton ( 54 NY2d 42, 49 [1981]) that "the test is no

1992Somewhere 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.” Notwithstanding increasing criticism of the Frye standard, at least as applicable to so-called "soft sciences,” (Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Co

2014In general, forensic laboratory procedures, which may involve the application of expertise involving the handling of the evidence to be tested, preparing an instrument to perform an analysis, the procedures followed to conduct the analysis, and the interpretation of test results, represent a significant amount of information “meet for cross-examination” (Bullcoming, 564 US at —, 131 S Ct at 2714; see also Melendez-Diaz v Massachusetts, 557 US 305 , 311 n 1 [2009] [“chain of custody, authenticity of the sample, (and the) accuracy of the testing device” are salient matters for authenticating tes

2012Defendant moved in limine to preclude introduction of the scientific test results and any testimony concerning the breathalyzer and Intoxilyzer 5000 testing here (see generally Bullcoming v New Mexico, 564 US —, 131 S Ct 2705 [2011]; 2 Melendez-Diaz v Massachusetts, 557 US 305 [2009] [Confrontation Clause provides defendants with Sixth Amendment right to cross-examine witnesses who conduct forensic tests]).

2009In prosecutions involving articles 220 and 221 of the Penal Law, courts generally require a scientific test confirming the presence of the illicit substance for an otherwise sufficient misdemeanor information to satisfy the prima facie pleading requirement to survive a motion to dismiss (see People v Ranieri, 127 Misc 2d 132 [Crim Ct, NY County 1985]; People v Swamp, 84 NY2d 725 [1995] [holding that detailed, uncontradicted grand jury testimony regarding a positive field test supported an indictment for drug possession]; Matter of Angel A., 92 NY2d 430 [1998] [finding a juvenile delinquency pe

1998(People v Swamp, 84 NY2d 725, 730 [citations omitted].) While it is true that the reports which were received in this case are statutorily prescribed for Grand Jury proceedings (CPL 190.30 [2]), the question remains whether extraneous hearsay material contained in the reports and not relevant to the scientific analysis conducted, may be considered by the jury.

2008The “[c]ertificates of chemical analysis,” in the court’s view, were “neither discretionary nor based on opinion”; they did not concern the exercise of fallible human judgment over questions of cause and effect; instead, “they merely [recorded, contemporaneously, the procedures taken and] state[d] the results of a well-recognized scientific test determining the composition and quantity of the substance” (444 Mass at 283, 827 NE2d at 705 ; see also Brown, 9 Misc 3d at 424 [“The notes and records of the laboratory technicians who tested the DNA samples . . . were not made for investigative or pr

2008The "[c]ertificates of chemical analysis," in the court's view, were "neither discretionary nor based on opinion"; they did not concern the exercise of fallible human judgment over questions of cause and effect; instead, "they merely [recorded, contemporaneously, the procedures taken and] state[d] the results of a well-recognized scientific test determining the composition and quantity of the substance" (444 Mass at 283, 827 NE2d at 705 ; see also Brown, 9 Misc 3d at 424 ["The notes and records of the laboratory technicians who tested the DNA samples ... were not made for investigative or pros

2002Thus, “the expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” (Matott v Ward, 48 NY2d 455, 455-456 [1979]; see Prince, Richardson on Evidence § 7-304, at 463 [Farrell 11th ed].) The second requirement is that such “expert testimony be based on a scientific principle or procedure which has been ‘sufficiently established to have gained general acceptance in the particular field in which it belongs’.” (People v Wemick, 89 NY2d 111, 115 [1996].) Thus, under

1988(De Long v County of Erie, 60 NY2d 296 ; Matott v Ward, 48 NY2d 455 .) EXPERT TESTIMONY — PSYCHOLOGICAL It is beyond cavil that expert psychiatric and psychological testimony is admissible in cases dealing with the sexual abuse of children.

1984Moreover, as to such formal notes the court concludes that under the clear term of the statute the work product or police record exemption — which, the court notes, was largely developed under a version of article 240 no longer in effect (cf. People v Copicotto, 50 NY2d 222,225, n 1 ) — does not apply, as the statute clearly provides for disclosure of records and documents even if the underlying test or examination is conducted by law enforcement personnel themselves.

1984However, the court firmly believes that the discovery statute affords ample authority for the release of this expert’s Grand Jury testimony as a written report or document which concerns a scientific test or experiment relating to the instant criminal action (CPL 240.20, subd 1, par [c].) As the Court of Appeals noted in People v Copicotto ( 50 NY2d 222, 226 ): “The criminal discovery procedure embodied in article 240 * * * evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversa

2020To satisfy the Frye standard, expert testimony must be based upon a scientific principle or procedure which has been "sufficiently established to have gained general acceptance" ( Marso v Novak , 42 AD3d 377, 378 [1st Dept 2007], lv denied 12 NY3d 704 [2009] [internal quotation marks omitted]).

2016J., concurring]; see also People v LeGrand, 8 NY3d 449 [2007].) Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence.

2016This interpretation is consistent with the Penal Law definition of a “written instrument” as “any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information” (Penal Law § 170.00 [1]; see also Robinson, 53 AD3d at 69 ). 6 Moreover, a “written document” is not limited to readable text. 7 Rather, any item which contains information concerning a scientific test, regardless of its form, may constitute a “written document.” Indeed, a diagram in a

2016This interpretation is consistent with the Penal Law definition of a “written instrument” as “any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information” (Penal Law § 170.00 [1]; see also Robinson, 53 AD3d at 69 ). 6 Moreover, a “written document” is not limited to readable text. 7 Rather, any item which contains information concerning a scientific test, regardless of its form, may constitute a “written document.” Indeed, a diagram in a

2016This interpretation is consistent with the Penal Law definition of a “written instrument” as “any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information” (Penal Law § 170.00 [1]; see also Robinson, 53 AD3d at 69 ). 6 Moreover, a “written document” is not limited to readable text. 7 Rather, any item which contains information concerning a scientific test, regardless of its form, may constitute a “written document.” Indeed, a diagram in a

2016This interpretation is consistent with the Penal Law definition of a “written instrument” as “any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information” (Penal Law § 170.00 [1]; see also Robinson, 53 AD3d at 69 ). 6 Moreover, a “written document” is not limited to readable text. 7 Rather, any item which contains information concerning a scientific test, regardless of its form, may constitute a “written document.” Indeed, a diagram in a

2016Accordingly, the People must produce the electronic raw data as a written document concerning a scientific test made at the request of law enforcement (see CPL 240.20 [1] [c]; see also DaGata, 86 NY2d at 44 ). .

2014However, the standards to be applied to determine whether the expertise of the proposed substitute witness who had observed the test and his or her personal knowledge of the test at issue is sufficient to permit meaningful cross-examination remain unclear (see Flournoy v Small, 681 F3d 1000, 1005 [9th Cir 2012] [“the degree of proximity the testifying witness must have to the scientific test” is an “unresolved area( )”]; Meras v Sisto, 676 F3d 1184, 1192 [9th Cir 2012, Bea, J., concurring] [the issue of the qualifications of a substitute witness is an open one, as Bullcoming expressly declined