Kelly-Frye
Category > Kelly-Frye
Updated 3/19/2024The trial court erred in admitting Trunarc evidence since the prosecution failed to establish its admissibility under the Kelly test.The police found pills in the suspect’s possession. The officer identified the substances using a presumptive test – a handheld laser device called a TruNarc identifier. However, the drug identification test was based on a new scientific technique and the prosecution failed to establish its admissibility under the Kelly test.id: 28224
Updated 2/26/2024The trial court prejudicially erred by admitting shotspotter evidence without conducting a Kelly/Frye hearing.The trial court erred in admitting “shotspotter” evidence (a third party service that sends police notification of sounds identified as gunshots) without first conducting an evidentiary hearing to assess its scientific reliability pursuant to People v Kelly (1776) 17 Cal.3d 24.id: 27249
The absence of general scientific acceptance as to the statistical calculation process rendered the DNA analysis inadmissible.One element of current DNA analysis "the determination of the statistical significance of a match between a defendant's DNA and the DNA in bodily material found at the crime scene" does not satisfy the Kelly-Frye requirement of general scientific acceptance. This finding is contrary to that of People v. Axell, (1991) 235 Cal.App.3d 836. However, the court found that Axell has been eclipsed on this point by subsequent scientific developments. The error in admitting the DNA analysis was harmless given the compelling evidence of guilt.id: 12981
Court erroneously applied Kelly-Frye analysis to testimony regarding a sleep disorder.A defense expert was prepared to testify that defendant suffered from confusional arousal syndrome, a sleep disorder, on the day of the assault. The court excluded the evidence finding that the syndrome was not generally accepted in the relevant scientific community under the Kelly-Frye analysis. The court also excluded the evidence under Evidence Code section 352. However, the court improperly applied the Kelly-Frye test to evidence which was essentially only ordinary expert testimony. That the name given to the malady had not yet achieved complete consensus in the psychological community was not a basis for precluding the evidence. Excluding the evidence under section 352 was also erroneous where the judge's reasoning paralleled his analysis of the Kelly-Frye rule.id: 13015
FBI agent's testimony did not establish that the procedures used by the FBI in DNA testing were generally accepted within the scientific community as reliable.In People v. Axell (1991) 235 Cal.App.3d 836, the court found that the manner in which Cellmark Laboratory performed the RFLP (DNA) test has passed Kelly-Frye scrutiny. However, Cellmark uses different protocols, restriction enzymes, probes, matching criteria and databases to arrive at its conclusions than are used by the FBI. The only testimony regarding the procedures employed by the FBI in the present case was presented by an FBI agent/doctor with stellar qualifications. However, his testimony standing alone did not establish that the FBI procedures satisfied the Kelly-Frye requirements. The prosecutor should have presented additional evidence that the protocols and/or procedure of the FBI were generally accepted within the scientific community as reliable. The case was remanded for a determination on this issue.id: 12979
Kelly-Frye (now Kelly) remains a prerequisite to the admission of expert testimony regarding new scientific methodology in the stateIn Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. ____, 125 L. Ed. 469, the Supreme Court held that Frye v. United States 293 Fed. 1013 was abrogated by rule 702 of the Federal Rules of Evidence. However, the Kelly/Frye formulation (now the Kelly formulation) remains a prerequisite to the admission of expert testimony regarding new scientific methodology in the state.id: 13028
Court erred in admitting DNA analysis because the FBI lab's method for statistical analysis has not received general scientific acceptance.Defendant challenged the admission of the DNA analysis evidence on the ground the FBI's method of analysis did not satisfy <i>Kelly-Frye</i> standards. The standard has been met for the processing and matching steps of DNA analysis, but has not been met for the statistical analysis step because of an absence of general scientific acceptance as to the process used to calculate the statistical significance of a match of DNA patterns. That there are more supporters than detractors in the scientific community did not establish general acceptance as required under <i>Kelly-Frye</i>. However, the error was not prejudicial. Even excluding the DNA analysis, defendant's guilt was overwhelmingly established by victim identification testimony, circumstantial evidence and defendant's own confession.id: 12975
Updated 2/26/2024The court did not err in refusing to subject the dog-trailing evidence to a threshold Kelly test.The trial court did not err in refusing to conduct a Kelly hearing before allowing the prosecution to present evidence of dog scent trailing. id: 26999
Updated 2/26/2024Kelly hearing was not required before admission of expert testimony regarding the trajectory of a body thrown into the S.F. Bay.The trial court did not err by admitting expert testimony concerning the trajectory of the victim’s body in the San Franciso Bay without first subjecting it to a Kelly hearing.id: 27000
The trial court did not err by admitting dog trailing evidence without conducting a Kelly or 402 hearing. The trial court did not err by admitting dog trailing evidence without either a Kelly or an Evidence Code section 402 hearing. Evidence grounded in the ability of particular dogs to perform scent trailing on command has been admissible since 1978, so long as a proper foundation is laid. When establishing the foundation it is not necessary that the prosecutor show the scent presented to the dog was not stale or contaminated.id: 24870
The trial court properly excluded the Abel test results used to show a lack of sexual interest in children, given the lack of acceptance of the test in the relevant scientific-community.Defendant charged with several child molest counts sought to present evidence showing he was not sexually deviant, which is permissible under People v. Stoll (1989) 49 Cal.3d 1136, 1140. He sought to use the “Abel Assessment Sexual Interest” test to prove he did not have a sexual interest in children. However, the Abel test results were properly excluded based on a lack of acceptance of such test results in the scientific community.id: 25264
Expert testimony that a cell phone was located on a certain side of the cell tower did not describe a new scientific technique subject to the Kelly standard.Expert testimony explaining a cell phone signal received by a certain side of the cell tower must have come from that side of the tower does not describe a new scientific technique subject to the Kelly standard for admitting the results of such techniques. Therefore, defense counsel did not render ineffective assistance by failing to object to the expert testimony on that basis. Moreover, the expert’s opinion that the phone was located on a particular side of the cell tower was not barred by Evidence Code sections 801 or 802.id: 24741
The trial court did not err by failing to conduct a Kelly hearing on the reliability of fingerprint evidence.Defendant argued the trial court erred when it admitted fingerprint evidence connecting him to the crimes because the scientific community has rejected the reliability of fingerprint evidence. However, fingerprint evidence is not subject to a Kelly type foundational hearing because it’s not a novel scientific technique and does not have a misleading aura of certainty. And fingerprint evidence, in general is not so unreliable that it should be excluded.id: 24198
A Kelly hearing was not required for the Mini Filer DNA test kit, which was a more refined version of an earlier kit that was used regularly. Defendant argued that DNA evidence derived from the Mini Filer test kit was inadmissible because it was a new technique whose reliability had never been established. However, a Kelly hearing was not required because the Mini Filer was a refined version of an earlier test that had been accepted as reliable in the relevant scientific community.id: 24195
The trial court did not err in failing to hold a Kelly hearing to determine the admissibility of the comparative handwriting analysis. Defendant argued the trial court erred in failing to hold a Kelly hearing concerning the admissibility of the prosecution’s comparative handwriting analysis. However, the method of comparison done here (visual magnification) was not sufficiently scientific to require a hearing under Kelly. And the court did not err in allowing the expert testimony that was relevant to prove defendant wrote the note found at the crime scene.id: 23757
The Kelly rule does not apply to fingerprint comparison testimony. The minor argued the juvenile court erred by admitting expert testimony about a palm print implicating him in the burglary. However, contrary to the minor’s claims, the comparison of fingerprints is not the type of “scientific technique” that is governed by the Kelly rule.id: 23394
Combining two accepted ballistics comparison techniques was not itself a new technique requiring a KeIly hearing.Ballistics testimony regarding tool mark comparison techniques and dynamic ballistics comparison technique are both generally accepted in the scientific community. Defendant argued that combining the techniques created a new technique the reliability of which should have been proved under the Kelly standards. However, the difference between the techniques was not a matter so beyond common understanding that the lay jurors could not give it proper consideration. id: 21746
The trial court properly denied a Kelly hearing based on a mere disagreement as to how well-accepted DNA testing is applied and interpreted. Defendant was convicted of various sex crimes against his 16 year-old victim. He argued the interpretation of the mixed DNA samples and the methodology used to predict probability of a DNA match constituted new scientific techniques requiring a Kelly hearing. Because there was no new scientific technique involved, but a mere disagreement as to how well-accepted DNA testing is applied and interpreted, the court did not err by refusing a Kelly prong-one hearing.id: 22920
The Photoshop process used to digitally enhance photographs was not a “new” scientific technique requiring a Kelly hearing. Defendant argued the trial court erred by failing to hold a Kelly hearing with respect to the Photoshop process that the DA’s investigative tech used to enhance the digital images. However, the Photoshop program was not a “new” scientific technique that should have been subject to the Kelly rule.id: 21986
The trial court did not err by allowing the prosecution’s expert to refute with her own undocumented experiment results, the defense expert’s claim that infusing defendant’s body with saline affected the blood analysis for drugs and alcohol. The defendant was charged with four counts of capital murder after she shot her four sons, and then shot herself in the stomach, ultimately surviving. She argued at trial that the killings were not premeditated in light of her heavy ingestion of alcohol and Valium. She claimed the testing of these substances gave a low reading because she was tested after receiving many saline infusions for her own wound. On appeal, she claimed the trial court erred by permitting the prosecution’s expert to refute this claim based upon informal experiments the expert had conducted years earlier on her own. However, the expert opinion was founded on information on which an expert may reasonably rely, and the fact that a similar conclusion had been omitted from a new version of a medical textbook did not render her testimony inadmissible.id: 22545
Assuming “dot-intensity” DNA analysis is a novel technique for Kelly purposes, any error was harmless given the strength of the evidence.Defendant conceded that under Kelly, the PCR DQ-Alpha testing method used in the case was generally accepted in the relevant scientific community. He claimed, however, that the dot intensity analysis relied on by the prosecution’s expert was a separate testing method that was not valid under Kelly. Whether or not this was true, any error was harmless in light of the overwhelming evidence of defendant’s guilt.id: 20746
Colposcopic examination is not a new scientific technique subject to Kelly-Frye requirements.Defendants argued that the trial court erred by admitting the doctor's testimony in that use of a colposcope to establish sexual abuse does not meet the Kelly-Frye standard of admissibility. However, a colposcope is a microscope and a colposcope examination is not a new scientific technique subject to the Kelly-Frye requirements.id: 13008
Hair comparison analysis to include defendant in a class of possible donors is not a new scientific technique for Kelly-Frye purposes.Defendant argued that use of hair comparison analysis to include a defendant in the class of possible donors was a new scientific technique, and that the People's criminalist was not qualified to testify on whether it had been generally accepted for this purpose. However, hair comparison evidence that identifies a suspect or victim as a possible donor has been routinely admitted in California for many years without any suggestion that it is unreliable under Kelly-Frye.id: 12985
Defendant could not argue for the first time on appeal that the prosecution's scientific evidence showing the victims died from lidocaine overdoses was inadmissible under Kelly-Frye.Defendant argued that the prosecution's scientific evidence showing the victims died from overdoses of lidocaine was inadmissible under the Kelly-Frye test. However, defendant's objections at trial were not based on the Kelly-Frye rule. His failure to challenge the testimony on those grounds barred him from raising the issue on appeal.id: 13018
Kelly-Frye rule was inapplicable to expert medical opinion on genital trauma in rape.Prior to trial the defendant moved in limine to prohibit the People from introducing expert opinion testimony on genital trauma in rape. Defendant claimed that the challenged testimony was inadmissible under the Kelly-Frye> rule. However, the instant testimony implicated no new scientific technique and the Kelly-Frye rule is inapplicable to expert medical opinion that the absence of genital trauma is inconsistent with non-consensual sexual intercourse.id: 13030
Laser-derived fingerprint image could not properly have been excluded on grounds that it was derived by scientifically unproven means.Defendant argued the trial court erred in denying his motion to exclude fingerprint evidence. He claimed the evidence was based in part on a chemical and laser process not generally accepted as reliable in the scientific community. However, where a procedure isolates physical evidence whose existence, appearance, nature and meaning are obvious to the senses of a lay person, the reliability of the process in producing that result is equally apparent and need not be debated under Kelly-Frye standards.id: 13031
Expert testimony in SVP cases is not subject to Kelly-Frye analysis.The trial court did not abuse its discretion when it admitted expert testimony regarding the likelihood that defendant was a sexually violent predator and likely to reoffend. Expert psychological testimony is not scientific evidence subject to <i>Kelly-Frye</i> analysis. Moreover, both doctors who testified for the prosecution had extensive experience in making psychiatric evaluations, and their expertise in diagnosis and treatment was closely related to the opinions they formed.id: 15729
Supreme Court says Daubert applies to all expert testimony, not just "scientific" testimony.In an 8-1 opinion written by Justice Breyer, the Supreme Court held that the general holding of <i>Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) - setting forth the trial judge's "gate-keeping" obligation with regard to expert testimony - applies not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" and "other specialized" knowledge. See Fed. R. Evid. 702. The court also concluded that a trial court "may" consider one or more of the specific Daubert factors if doing so would help determine the testimony's reliability. The test of reliability is "flexible," and Daubert's list of specific factors "neither necessarily not exclusively applies to all experts or in every case." Rather, "the law grants a district court the same broad latitude when it decides "how" to determine reliability as it enjoys in respect to its ultimate reliability determination." Applying these standards to this case involving expert testimony about whether a tire was defective, the court found no abuse of discretion in excluding the expert's testimony. Justice Stevens concurred in part and dissented in part.id: 15146
The trial court properly excluded expert testimony regarding a PET scan because the use of PET scans to diagnose prior brain injury has not been generally accepted in the field of brain imaging and neurology.Defendant argued the trial court committed reversible error in excluding testimony of one of his experts regarding the results of a position emission tomograph (PET) scan of his brain. The doctor's testimony, and the available literature failed to demonstrate that the use of PET scan imaging to diagnose a prior brain injury was generally accepted in the field of brain imaging and neurology. The trial court properly excluded the doctor's testimony.id: 15036
Testimony by a forensic toxicologist on the effects of methamphetamine on human behavior is not a novel scientific technique for Kelly purposes.Defendant was charged with vehicular manslaughter while driving under the influence of methamphetamine. He argued the trial court erred in admitting expert testimony concerning the effects of methamphetamine on human behavior. He claimed this was a novel technique that had not gained acceptance in the scientific community. (<i>People v. Kelly</i> (1976) 17 Cal.3d 24.) However, the expert's opinion which was the result of epidemiological studies he conducted did not involve a novel process or a new scientific technique.id: 15035
Electrophoretic multisystem testing of bloodstains is generally accepted in the scientific community.A police criminalist testified that she scraped a dried stain from defendant's knife. Using electrophoretic multisystem testing, she determined the stain was human blood. Defendant sought to exclude the evidence. Such testing has previously been determined to be generally accepted in the relevant scientific community. The only issue was the third prong of the Kelly test, whether proper procedures were used. Moreover, the inability of electrophoretic multisystem testing to distinguish certain genetic markers from each other, and its inability to distinguish PGM subtypes, does not affect the scientific validity of the test results nor does it provide a basis to question the accuracy of the criminalist's testimony.id: 17092
There was no attorney-client privilege violation where the prosecutor called the defense criminalist to testify at the Kelly hearing where the expert was the only percipient witness to the tests done by the police criminalist and he was only asked about his initialing the lab results.A police criminalist scraped a dried stain from a knife defendant was carrying. The amount of material taken from the knife was only sufficient to perform one blood typing test. The defense was informed and a defense expert observed the testing of the material. The prosecutor called the defense expert at the Kelly hearing (challenging the testing procedure). The defense argued the court erred in denying the defense request to exclude all evidence of the defense expert's participation in the dried stain testing and the ruling violated the attorney-client privilege and right to the effective assistance of counsel. However, the defense expert was the only percipient witness to the tests and the defense challenged the police criminalist's procedures and results. The prosecutor did not question the defense expert on reports he prepared for the defense but rather his act of initialing the lab notes of the police criminalist. There was no statutory or constitutional violation in questioning the defense expert on that topic.id: 17093
The Kelly-Frye test does not bar admission into evidence of an ADX Abbott urinalysis test.Defendant argued the ADX Abbott urinalysis test results were inadmissible under the Kelly/Frye doctrine. The machine tests urine samples for drug usage. It is not new. It is a widely used method of drug testing and has reached a level of general acceptance in the medical community.id: 16675
No Kelly hearing required for the Static-99 test where expert's opinion on the likelihood of a sex offender reoffending is not based solely on the results of that test.When an expert's opinion regarding the likelihood of defendant reoffending is not based solely upon the results of the static-99 test (which assigns a risk assessment of reoffending) a Kelly hearing on the admissibility of an expert's testimony regarding the test is not required.id: 17632
There was no error in admitting the results of the electrophoretic testing as the prosecutor satisfied the three Kelly prongs. Defendant argued the trial court erred in admitting the results of the electrophoretic testing of the blood stains on the tennis shoes. The prosecutor satisfied all three prongs of the Kelly test, 1) general acceptance in the scientific community, 2) the criminalist's qualifications, and 3) his testing methods.id: 19611
Shoe print comparison was not subject to Kelly requirements.Defendant argued the shoe print evidence, offered through the police criminalist was inadmissible under People v. Kelly (1976) 17 Cal.3d 24. However, jurors could judge for themselves whether the sole patterns looked the same. Since the evidence was obvious to a lay person, it did not implicate the concerns regarding the reliability of scientific procedures.id: 19789
A "cold hit" from a DNA database is not subject to the Kelly-Frye standard where it is used to identify a possible suspect.A "cold hit" from a DNA database is not subject to the Kelly-Frye standard of admissibility, at least when it is used merely to identify a possible suspect. The database search merely provides law enforcement with an investigative tool, not evidence of guilt. There is no authority applying Kelly's requirements to a mere investigative technique. Indeed, Frye and its progeny, including Kelly, are concerned with the
effect of scientific evidence on the jury.id: 19086
Kelly-Frye rule does not apply to expert testimony on the reactions of child molestation victims.A licensed clinical social worker testified as an expert on the reactions of child molestation victims. Defendant argued she was not qualified to testify as an expert because the subject of her testimony did not pass the Kelly-Frye test. Her opinion was based on her clinical experience with child sex abuse victims and on her familiarity with professional literature in the area. The Kelly-Frye rule does not apply to this type of evidence.id: 13029
Prosecution's computer animation of the shooting was not a new scientific procedure requiring a Kelly hearing.Defendant objected to the introduction of the prosecution's computer animation of the shooting which was the collective product of the prosecution's experts. Defendant argued the animation did not meet the People v. Kelly (1976) 8 Cal.4th 587, formulation for new scientific procedures. However, the computer animations (used by both sides) were tantamount to drawings by the experts and did not constitute a new scientific procedure. Moreover, contrary to defendant's claim the animation was not unduly prejudicial as it was clinical and emotionless.id: 12980
The segmentation process used to enhance images has been generally accepted in the scientific community.A newspaper photographer took a picture from a helicopter of a man as he threw a brick at the victim's head. The man appeared to have an undefined mark on his left arm. At trial, it was discovered defendant had a rose tatoo on his left forearm. The trial court did not err in admitting evidence obtained through segmentation, the process using computers and mathematical formulas to create a more discernible image. The segmentation process has been generally accepted in the scientific community.id: 13039
Court has no duty to raise Kelly-Frye objections sua sponte.The People introduced electrophoretic evidence to establish the murderer came from a group of 5 percent of the male population and defendant was a member of that group. Defense counsel failed to make a motion that such evidence should have been subject to a Kelly-Frye hearing. This failure did not amount to ineffective assistance where counsel explained that he chose instead to present his own expert to testify as to the unreliability of such testing. Finally, the trial court has no duty to raise Kelly-Frye objections sua sponte.id: 13016
Hysterical response syndrome was not subject to Kelly-Frye requirements.Counsel was not ineffective for failing to object to the introduction of testimony concerning the hysterical response syndrome. Hysteria is a recognized psychological phenomenon and not properly subject to the Kelly-Frye rule.id: 13027
Record supported the court's conclusion that agglutination inhibition evidence is accepted in the scientific community.There is no published authority concerning the admissibility of forensic agglutination inhibition evidence. Nevertheless, the uncontradicted testimony established the test has been performed by scientists around the world for years with a high degree of accuracy. Consequently, the record supported the trial court's conclusion that the scientific community accepts agglutination inhibition as a valid and reliable scientific technique.id: 13035
The scientific community has accepted the reliability of electrophoresis in the typing of dried bloodstains.Experts in the scientific community have reached a concensus regarding the reliability of electrophoresis testing when applied to dried bloodstains in a forensic setting. Therefore, the trial court did not err in admitting the evidence based on the testimony of a single expert.id: 13038
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245