Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
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Sunday, July 31, 2016

Drug recognition testimony has not been approved by Appellate Court decisions in NJ

No New Jersey case has considered the admissibility of the DRE technique and the use of a DIE like that reported in the present case.  For purposes of our legal analysis, the technique can be analogized to HGN.  In New Jersey, two cases have considered HGN -- State v. Doriguzzi[6] and State v. Maida,[7] which Doriguzzi effectively overruled.  In other states, several cases have discussed HGN, but few, if any, have addressed DIE.  Consequently, most of the cases cited and discussed herein deal with HGN -- i.e., the voodoo science of police claiming they can detect intoxication from the involuntary twitching of eyeballs.  However, these cases and discussions apply with equal if not greater force to DIE as to HGN.  Indeed, HGN is only a part of DIE, albeit a the officer ignored.  DRE deals with several observations and tests that only a physician might be qualified to make and do.  Thus, while the following discussion emphasizes HGN, the legal principles apply to DRE and DIE, as well.
DRE and DIE, like HGN, represent new or novel evidence.  "In determining whether a scientific technique is 'new',...use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians."[1]  "HGN testing has been repeatedly challenged in court, with varying degrees of success, in ... other states, and accordingly its courtroom use cannot be fairly characterized as 'routine' or settled in the law."[2]  Given the history of legal challenges to admissibility of HGN in other states, "it seems appropriate that we deem the technique 'new' or 'novel' for purposes of" evidentiary analysis.[3]  "To hold that a scientific technique could become immune from [evidentiary] scrutiny merely by reason of long-standing and persistent use by law enforcement outside the laboratory or the courtroom, seems unjustified."[4]
DRE and DIE are also scientific evidence.  Like HGN, this technique is distinguishable from other field sobriety tests in that science, rather than common knowledge, provides legitimacy for the testing.[5]  The premise of DRE and DIE is "the scientific principle” that consumption of certain categories of drugs “causes” the manifestations attributed to that category when evaluated in the DRE.[6]  As such, it is subject to the requirement that it be generally accepted within the scientific community before this Court can consider it.  Indeed, "[t]he majority of jurisdictions that have considered the issue have held that the HGN test is scientific evidence, most requiring that the Frye foundation requirements for admissibility be satisfied."[7]  Kansas, discussing alcohol and HGN, followed the majority in this regard, holding
Alcohol's effect on a person's sense of balance is common knowledge.  The same cannot be said for HGN.  The HGN test is based upon scientific principles and exceeds common knowledge.  We hold that the HGN test results are scientific evidence.  As such, the Frye foundation requirements for admissibility must be satisfied.[8]
The same can be said of the various factors in DIEs -- e.g., HGN test; vertical nystagmus test; measurements of pupil size and reaction; convergence of the eyes; measurements of pulse, blood pressure, and body temperature; and examination of hands.  From the way DRE and DIE were presented in the present case, this Court should hold that they, like HGN, are novel scientific in New Jersey.[9]

Two standards of proof concerning acceptance of novel scientific evidence currently compete for acceptance in our courts today.  The first is the "general acceptance" test, commonly called the Frye test, after Frye v. United States, which phrased the test this way:
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 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 first made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.[1]
The second standard, based on the premise that legislatively enacted Rules of Evidence supersedes the common law Frye test, was discussed in the U.S. Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals.[2]  Daubert found that Frye “was superseded by the adoption of the Federal Rules of Evidence"[3] based on an analysis of the Federal Rules of Evidence, which, of course, parallel the New Jersey Rules of Evidence.
Faced with these two competing standards, our Supreme Court held that, in New Jersey criminal cases, "we continue to apply the general acceptance or Frye test for determining the scientific reliability of expert testimony."[4]  Furthermore, the law in New Jersey requires that the party offering novel scientific evidence bears the burden of proof.[5]  "[T]he best time to make the record on admission of such evidence is in a Rule 104 hearing."[6]  Trial courts are in a "better position to shape the record and make factual determinations, [to] digest expert testimony as well as review scientific literature, judicial decisions, and other authorities."[7]
"Proof of general acceptance within a scientific community can be elusive."[8]  "Satisfying the test involves more than simply counting how many scientists accept the reliability of the proffered technology."[9]  "Proving general acceptance 'entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience.'"[10]  Essentially, a novel scientific technique achieves general acceptance only when it passes from the experimental to the demonstrable stage.[11]
General acceptance, however, does not require complete agreement over the accuracy of the test or the exclusion of the possibility of error.[12]  Neither is it necessary to demonstrate that the techniques, methodology, and procedures are infallible.[13]  Nor is it necessary that acceptance within the scientific community be unanimous.[14]  In making its findings, the trial court should remember that witness credibility is less important than witness competence, at least "[t]o the extent that general acceptance focuses on issues other than a witness's credibility or qualifications...."[15]
N.J.R.E. 702 governs the admission of expert testimony.  The rule provides, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."  According to our Supreme Court,[1] this rule, in effect, imposes three basic requirements on the admission of expert testimony:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror;
(2) the subject of the testimony must be at a state of the art such that an expert's testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise to explain the intended testimony.
Here, DRE and DIE, like HGN, are beyond the ken of a layman.  The testing officer may qualify as an expert in the DRE field.  But the fundamental question is whether the scientific community has sufficiently accepted the DRE technique and DIE to justify admission of testimony about them.  A proponent of newly-devised scientific technology can prove general acceptance in three ways:
(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;
(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and
(3) by judicial opinions that indicate the expert's premises have gained general acceptance.[2]
Here, the State offers no expert testimony, only testimony from the officer administering the DIE.  The officer is neither a physician, pharmacologist, nor scientist.  He is a police officer who lacks any expertise on which to discuss more than police opinion.  As California's courts have, this Court should conclude that "testimony by police officers regarding the mere administration of the test is insufficient to meet the general acceptance standard required by" Frye.[3]  A police officer's opinion that a person
was under the influence of alcohol, to the extent it was based on the nystagmus test, rests on scientific premises well beyond his knowledge, training, or education.  Without some understanding of the processes by which alcohol ingestion produces nystagmus, how strong the correlation is, how other possible causes might be masked, what margin of error has been shown in statistical surveys, and a host of other relevant factors, [the officer]'s opinion on causation, notwithstanding his ability to recognize the symptom, was unfounded.  It should have been excluded.[4]
      Thus, the officer’s testimony is insufficient in Defendant’s case to establish an adequate foundation that the DRE technique or DIE, like HGN, is a valid indicator that my client  was under the influence of drugs.
Nor has the State provided any authoritative scientific or legal writings establishing the DRE technique and DIE as generally accepted within the scientific community to reliably indicate the influence of drugs.  The Pennsylvania Superior Court "refused to allow the results of HGN testing without first establishing an adequate foundation."[5]  In Commonwealth v. Miller,[6] the court held that HGN was not established  without proof "that the scientific principles upon which the test is based are generally accepted by scientists in the appropriate scientific communities."   . Later, in Commonwealth v. Apollo,[7] the court held that, despite the testimony of a behavioral optometrist, the reliability of HGN was not settled within the scientific community.  Finally, in Commonwealth v. Moore, that court held that the testimony of a county detective certified as an instructor in HGN by the Pennsylvania Department of Transportation "did not provide an adequate basis for finding that HGN testing had gained general acceptance in the scientific community, particularly in the field of medical science represented by ophthalmology."[8]  The same can be said of the DRE technique and DIE performed in Defendant’s case.

[1] State v. Harvey, supra at 169, citing State v. Kelly, 97 N.J. 178 (1984).
[2] State v. Harvey, supra at 169.
[3] People v. Leahy, supra at 334.
[4] Id., quoting People v. Williams, 3 Cal.App.4th 1326, 1333-34, 5 Cal.Rptr.2d 130 (1992); see State v. Witte, supra at 1115-16, quoting this same passage.
[5] Commonwealth v. Moore, 635 A.2d 625, 629 (Pa.Super. 1993).
[6] 532 A.2d 1186, 1189 (Pa.Super. 1987).
[7] 603 A.2d 1023, allocatur den. 613 A.2d 556 (1992).
[8] Commonwealth v. Moore, supra at 629.

[1] Frye v. United States, supra, 293 F. at 1014, 54 App.D.C. at 47.
[2] 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
[3] Id., 509 U.S. at 587.
[4] State v. Harvey, 151 N.J. 117, 169 (1997).
[5] Id. at 167; Windmere, Inc. v. International Insurance Co., 105 N.J. 373, 378 (1987).
[6] State v. Harvey, supra at 167.
[7] Id.
[8] State v. Harvey, supra at 171, citing Windmere, Inc., v. International Insurance Co., supra at 379.
[9] State v. Harvey, supra at 171, citing State v. Williams, 252 N.J.Super. 369, 375 (Law Div. 1991).
[10] State v. Harvey, supra at 171, quoting Rubanick v. Witco Chemical Co., 125 N.J. 421, 436 (1991).
[11] State v. Harvey, supra at 171, citing Windmere, Inc., v. International Insurance Co., supra at 378, n.2.
[12] See Biunno, Current N.J. Rules of Evidence, Comment 4 to N.J.R.E. 702 (Gann 2010); State v. Johnson, 42 N.J. 146, 171 (1964).
[13] State v. Harvey, supra at 171.
[14] Id., citing State v. Tate, 102 N.J. 64, 83 (1986).
[15] State v. Harvey, supra at 167.  Accord State v. Doriguzzi, supra.

[1] People v. Leahy, 882 P.2d 321, 332 (Cal. 1994).
[2] Id. at 332 (emphasis in original).
[3] Id.
[4] Id. (emphasis in original).  Accord State v. Doriguzzi, supra.
[5] Id. at 333; State v. Witte, 836 P.2d 1110, 1115 (Kan. 1992).
[6] See People v. Leahy, supra; State v. Witte, supra at 1112.
[7] Id. at 1115, citing Frye v. United States, 293 F. 1013, 54 App.D.C. 46, 34 A.L.R. 145 (1923).
[8] State v. Witte, supra at 1116.
[9] See State v. Doriguzzi, supra.

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