Frye test in Oklahoma

1995App. 598 , 863 P.2d 1303, 1309 (1993) (concluding that "[t]here is no dispute that the PCR method is generally accepted within the field.") [58] While this admissibility standard is more flexible than the Frye "general acceptance" test this Court has traditionally applied, we note that the evidentiary hearing judge found the DNA match evidence admissible under the stricter Frye standard.

1995App. 598 , 863 P.2d 1303, 1309 (1993) (concluding that "[t]here is no dispute that the PCR method is generally accepted within the field.") [58] While this admissibility standard is more flexible than the Frye "general acceptance" test this Court has traditionally applied, we note that the evidentiary hearing judge found the DNA match evidence admissible under the stricter Frye standard.

1995See Beck v. State, 824 P.2d 385, 389 (Okl.Cr. 1991) (concluding that in the absence of state cases interpreting a particular section of the Evidence Code, this Court will look to United States Supreme Court's construction of counterpart section in Federal Rules of Evidence). [30] Daubert, ___ U.S. at ___, 113 S.Ct. at 2794 (citations omitted). [31] The Arizona Supreme Court in Bible, 858 P.2d at 1181 , set forth some of the Frye test's significant shortcomings: New discoveries are not immediately accepted in the scientific community.

1995See Beck v. State, 824 P.2d 385, 389 (Okl.Cr. 1991) (concluding that in the absence of state cases interpreting a particular section of the Evidence Code, this Court will look to United States Supreme Court's construction of counterpart section in Federal Rules of Evidence). [30] Daubert, ___ U.S. at ___, 113 S.Ct. at 2794 (citations omitted). [31] The Arizona Supreme Court in Bible, 858 P.2d at 1181 , set forth some of the Frye test's significant shortcomings: New discoveries are not immediately accepted in the scientific community.

1995See Bible, 858 P.2d at 1183 ("[N]ot withstanding legitimate criticism of Frye , ... this is not the case to determine whether Arizona should follow Daubert. " See also Fish back, 851 P.2d at 890 (DNA testing "is precisely the sort of scientific evidence which requires application of the Frye test."). [34] See Paxton v. State, 867 P.2d 1309, 1323, n. 3 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 227 , 130 L.Ed.2d 153 (1994); Yell, 856 P.2d at 996 ; Davenport, 806 P.2d at 661 ; Moore, 788 P.2d at 398 ; Driskell, 659 P.2d at 356 ; Henderson, 230 P.2d at 502 . [35] See e.g.

1995See Bible, 858 P.2d at 1183 ("[N]ot withstanding legitimate criticism of Frye , ... this is not the case to determine whether Arizona should follow Daubert. " See also Fish back, 851 P.2d at 890 (DNA testing "is precisely the sort of scientific evidence which requires application of the Frye test."). [34] See Paxton v. State, 867 P.2d 1309, 1323, n. 3 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 227 , 130 L.Ed.2d 153 (1994); Yell, 856 P.2d at 996 ; Davenport, 806 P.2d at 661 ; Moore, 788 P.2d at 398 ; Driskell, 659 P.2d at 356 ; Henderson, 230 P.2d at 502 . [35] See e.g.

2003State v. Kinney, 171 Vt. 239 , 762 A.2d 833, 841 (2000). 10 .

2003State v. Kinney, 171 Vt. 239 , 762 A.2d 833, 841 (2000). 10 .

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

2003Rickgauer v. Sarkar, 804 So.2d 502, 504 (Fla.App.2001), (Florida courts still apply the Frye test in determining the admissibility of scientific evidence, as the Florida Supreme Court has declined to apply Daubert); Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000), (modified Frye standard used and Daubert rejected); Kansas City Southern Ry.

2003Rickgauer v. Sarkar, 804 So.2d 502, 504 (Fla.App.2001), (Florida courts still apply the Frye test in determining the admissibility of scientific evidence, as the Florida Supreme Court has declined to apply Daubert); Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000), (modified Frye standard used and Daubert rejected); Kansas City Southern Ry.

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

2003Rickgauer v. Sarkar, 804 So.2d 502, 504 (Fla.App.2001), (Florida courts still apply the Frye test in determining the admissibility of scientific evidence, as the Florida Supreme Court has declined to apply Daubert); Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000), (modified Frye standard used and Daubert rejected); Kansas City Southern Ry.

2003Rickgauer v. Sarkar, 804 So.2d 502, 504 (Fla.App.2001), (Florida courts still apply the Frye test in determining the admissibility of scientific evidence, as the Florida Supreme Court has declined to apply Daubert); Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000), (modified Frye standard used and Daubert rejected); Kansas City Southern Ry.

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

2003Co., Inc. v. Johnson, 798 So.2d 374, 382 (Miss.2001), (uses Frye test and has not adopted Daubert); State v. Free, 351 N.J.Super. 203 , 798 A.2d 83, 93 (App. Div.2002), (state jurisprudence is consistent with Frye and not Daubert); People v. Johnston, 273 A.D.2d 514 , 709 N.Y.S.2d 230, 236 , Iv. denied, 95 N.Y.2d 935 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 {Frye applied); State v. Copeland, 130 Wash.2d 244 , 922 P.2d 1304, 1314-315 (1996), {Frye test applied and declined to adopt Daubert); Armstrong v. City of Wichita, 21 Kan.App.2d 750 , 907 P.2d 923, 929 (1996), (Daubert not applied and Frye app

1998We note in passing that under the superced-ed Frye test, expert opinion based on scientific technique was inadmissible unless the technique was “generally accepted as reliable in the relevant scientific community.” Frye v. United States, 54 App.D.C. 46, 47 , 293 P. 1013 , 1014 (1923).

1998We note in passing that under the superceded Frye test, expert opinion based on scientific technique was inadmissible unless the technique was "generally accepted as reliable in the relevant scientific community." Frye v. United States, 54 App.D.C. 46, 47 , 293 F. 1013, 1014 (1923).

1995See also Bible, 858 P.2d at 1183 (holding that scientific evidence which passes muster under Frye is admissible "subject to a foundational showing."); Nelson v. State, 628 A.2d 69 (Del. 1993) (applying a combination of Frye and rules of evidence); Houser, 490 N.W.2d at 178 (concluding Frye test is only first of several criteria that must be satisfied before novel scientific evidence may be admitted); Cauthron, 846 P.2d at 505 (holding that "[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted."); United States v. Porter

1995See also Bible, 858 P.2d at 1183 (holding that scientific evidence which passes muster under Frye is admissible "subject to a foundational showing."); Nelson v. State, 628 A.2d 69 (Del. 1993) (applying a combination of Frye and rules of evidence); Houser, 490 N.W.2d at 178 (concluding Frye test is only first of several criteria that must be satisfied before novel scientific evidence may be admitted); Cauthron, 846 P.2d at 505 (holding that "[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted."); United States v. Porter

1995We agree with State v. Vandebogart, 136 N.H. 365 , 616 A.2d 483 . 490 (1992), that the third prong is not part of the Frye analysis. [5] Defense counsel did not present any expert testimony either at the in camera hearing or during trial.

1995We agree with State v. Vandebogart, 136 N.H. 365 , 616 A.2d 483 . 490 (1992), that the third prong is not part of the Frye analysis. [5] Defense counsel did not present any expert testimony either at the in camera hearing or during trial.

1995See also Bible, 858 P.2d at 1183 (holding that scientific evidence which passes muster under Frye is admissible "subject to a foundational showing."); Nelson v. State, 628 A.2d 69 (Del. 1993) (applying a combination of Frye and rules of evidence); Houser, 490 N.W.2d at 178 (concluding Frye test is only first of several criteria that must be satisfied before novel scientific evidence may be admitted); Cauthron, 846 P.2d at 505 (holding that "[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted."); United States v. Porter

1995See also Bible, 858 P.2d at 1183 (holding that scientific evidence which passes muster under Frye is admissible "subject to a foundational showing."); Nelson v. State, 628 A.2d 69 (Del. 1993) (applying a combination of Frye and rules of evidence); Houser, 490 N.W.2d at 178 (concluding Frye test is only first of several criteria that must be satisfied before novel scientific evidence may be admitted); Cauthron, 846 P.2d at 505 (holding that "[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted."); United States v. Porter

1995App.3d 499 , 188 Ill.Dec. 598, 625 , 618 N.E.2d 1168, 1195 (5 Dist. 1993) (concluding that whether laboratory properly performed accepted techniques goes to weight, not admissibility, and is thus not included in the Frye calculation); State v. Harris, 866 S.W.2d 583, 587 (Tenn.Cr.App. 1992) (concluding that to be admissible under Frye, evidence must have gained general acceptance in relevant scientific field); State v. Cauthron, 120 Wash.2d 879 , 846 P.2d 502, 507 (1993) (concluding that conditioning admissibility on showing of no human error is "inappropriate in jurisdictions utilizing the Fr

1995App.3d 499 , 188 Ill.Dec. 598, 625 , 618 N.E.2d 1168, 1195 (5 Dist. 1993) (concluding that whether laboratory properly performed accepted techniques goes to weight, not admissibility, and is thus not included in the Frye calculation); State v. Harris, 866 S.W.2d 583, 587 (Tenn.Cr.App. 1992) (concluding that to be admissible under Frye, evidence must have gained general acceptance in relevant scientific field); State v. Cauthron, 120 Wash.2d 879 , 846 P.2d 502, 507 (1993) (concluding that conditioning admissibility on showing of no human error is "inappropriate in jurisdictions utilizing the Fr

1995See U.S. v. Jakobetz, 955 F.2d 786, 797 (2nd Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 104 , 121 L.Ed.2d 63 (1992) (concluding that rather than make initial determination that evidence is true, courts should submit otherwise admissible evidence to jury and let it "discharge its duties of weighing the evidence, making credibility determinations, and ultimately deciding the facts."); State v. Kalakosky, 121 Wash.2d 525 , 852 P.2d 1064, 1072 (1993) (concluding that "[t]he issue of human error in the forensic laboratory is analyzed under ER 702 and is not a part of the Frye test which asks

1995See U.S. v. Jakobetz, 955 F.2d 786, 797 (2nd Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 104 , 121 L.Ed.2d 63 (1992) (concluding that rather than make initial determination that evidence is true, courts should submit otherwise admissible evidence to jury and let it "discharge its duties of weighing the evidence, making credibility determinations, and ultimately deciding the facts."); State v. Kalakosky, 121 Wash.2d 525 , 852 P.2d 1064, 1072 (1993) (concluding that "[t]he issue of human error in the forensic laboratory is analyzed under ER 702 and is not a part of the Frye test which asks

1995App.3d 393 , 160 Ill.Dec. 347 , 577 N.E.2d 477, 483 (1991) (same); Ford, 392 S.E.2d 781, 784 (same); Cobey, 559 A.2d at 398 (same); People v. Wesley, 140 Misc.2d 306 , 533 N.Y.S.2d 643, 659 (Co.Ct. 1988), affirmed 183 A.D.2d 75 , 589 N.Y.S.2d 197 (1989), Snowden v. State, 574 So.2d 960, 966 (Ala. Crim.

1995App.3d 393 , 160 Ill.Dec. 347 , 577 N.E.2d 477, 483 (1991) (same); Ford, 392 S.E.2d 781, 784 (same); Cobey, 559 A.2d at 398 (same); People v. Wesley, 140 Misc.2d 306 , 533 N.Y.S.2d 643, 659 (Co.Ct. 1988), affirmed 183 A.D.2d 75 , 589 N.Y.S.2d 197 (1989), Snowden v. State, 574 So.2d 960, 966 (Ala. Crim.

1995See also Bible, 858 P.2d at 1183 (holding that scientific evidence which passes muster under Frye is admissible "subject to a foundational showing."); Nelson v. State, 628 A.2d 69 (Del. 1993) (applying a combination of Frye and rules of evidence); Houser, 490 N.W.2d at 178 (concluding Frye test is only first of several criteria that must be satisfied before novel scientific evidence may be admitted); Cauthron, 846 P.2d at 505 (holding that "[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted."); United States v. Porter

1995See also Bible, 858 P.2d at 1183 (holding that scientific evidence which passes muster under Frye is admissible "subject to a foundational showing."); Nelson v. State, 628 A.2d 69 (Del. 1993) (applying a combination of Frye and rules of evidence); Houser, 490 N.W.2d at 178 (concluding Frye test is only first of several criteria that must be satisfied before novel scientific evidence may be admitted); Cauthron, 846 P.2d at 505 (holding that "[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted."); United States v. Porter

1995See also Plunkett, 719 P.2d at 840 ; Driskell, 659 P.2d at 356 ; Kennedy, 640 P.2d at 978 ; Fowler v. State, 512 P.2d 238, 244 (Okl.Cr. 1973). [49] See Bechtel, 840 P.2d at 7 (Court independently reviewed available sources on the novel "battered woman syndrome" before concluding that trial judge's decision not to admit this evidence was improper); Davenport, 806 P.2d at 658 (concluding that "[t]his Court has the right to make an independent search of appropriate medical and legal doctrines to determine if the [child accommodation] syndrome is generally accepted and meets the proper test."). [5

1995See also Plunkett, 719 P.2d at 840 ; Driskell, 659 P.2d at 356 ; Kennedy, 640 P.2d at 978 ; Fowler v. State, 512 P.2d 238, 244 (Okl.Cr. 1973). [49] See Bechtel, 840 P.2d at 7 (Court independently reviewed available sources on the novel "battered woman syndrome" before concluding that trial judge's decision not to admit this evidence was improper); Davenport, 806 P.2d at 658 (concluding that "[t]his Court has the right to make an independent search of appropriate medical and legal doctrines to determine if the [child accommodation] syndrome is generally accepted and meets the proper test."). [5

1995We will continue under Daubert to adhere to the position we maintained under Frye : issue over proper performance of testing procedures used to generate scientific or technical evidence affect only the weight of that evidence and not its admissibility. [47] See Clayton v. State, 840 P.2d 18, 28 (Okl.Cr. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1655 , 123 L.Ed.2d 275 (1992); Moore, 788 P.2d at 397 ; Phillips v. State, 756 P.2d 604, 610 (Okl.Cr. 1988). [48] See Fox, 779 P.2d at 571 (citing the Frye test but not citing the Frye case, Court reviewed trial court's decision on admissibility of n

1995We will continue under Daubert to adhere to the position we maintained under Frye : issue over proper performance of testing procedures used to generate scientific or technical evidence affect only the weight of that evidence and not its admissibility. [47] See Clayton v. State, 840 P.2d 18, 28 (Okl.Cr. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1655 , 123 L.Ed.2d 275 (1992); Moore, 788 P.2d at 397 ; Phillips v. State, 756 P.2d 604, 610 (Okl.Cr. 1988). [48] See Fox, 779 P.2d at 571 (citing the Frye test but not citing the Frye case, Court reviewed trial court's decision on admissibility of n