1. Criminal and quasi criminal cases– State v. Olenowski, 253 N.J. 133 (2023)

In a ground-breaking new case, State v. Olenowski, 253 N.J. 133, ___ (2023) (slip op. at 4-5),[1] the Court rejected application of the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) standard, which had been applied in criminal cases in New Jersey for decades and adopted “principles similar to the standard outlined in Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993) to examine the admissibility of expert evidence in criminal and quasi-criminal cases.”

In Olenowski, the prosecutor introduced Drug Recognition Expert (DRE) testimony at trial to prove that the defendant had been driving while under the influence of a central nervous system depressant and stimulant.  Id. at ___ (slip op. at 6).  The Municipal Court Judge convicted the defendant; the Superior Court upheld the use of DRE evidence under Frye and affirmed the convictions after a trial de novo; and the Appellate Division affirmed.  Id. at ___ (slip op. at 6).

The New Jersey Supreme Court granted certification to decide whether the testimony of the officer who was a certified Drug Recognition Expert was admissible at trial and, if so, under what circumstances.  Id. at ___ (slip op. at 5).  The Court concluded that the factual record was inadequate to test the validity of the DRE evidence and appointed a Special Master to conduct “a plenary hearing to consider and decide whether DRE evidence has achieved general acceptance within the relevant scientific community and therefore satisfies the reliability standard of N.J.R.E. 702.”  Id. at ___ (slip op. at 6).  At the conclusion of the hearing, the Special Master, in a 332-page Report of Findings of Fact and Conclusions of Law, concluded that DRE evidence should be admissible under the Frye standard.  Id. at ___ (slip op. at 7).

The New Jersey Supreme Court then addressed the question of whether it should depart from Frye and adopt the principles of Daubert in criminal cases.  Id. at ___ (slip op. at 10).   The Court wrote that the admissibility of expert testimony is governed by N.J.R.E. 702.  Id. at ___ (slip op. at 10).  To satisfy that Rule, the proponent of the evidence must establish, among other things that the field of inquiry is “at a state of the art such that an expert’s testimony could be sufficiently reliable.”  Id. at ___ (slip op. at 11) (quoting State v. J.L.G., 234 N.J. 265, 280 (2018)).  In criminal cases, the Court had for decades applied the Frye standard to assess reliability.  Ibid.

The Court in Olenowski explained that “Frye permits judges to consider only whether the subject of the testimony has been ‘generally accepted’ in the relevant scientific community; Daubert empowers courts to directly examine the reliability of expert evidence and consider a broader range of relevant information.  The more restrictive standard in Frye is also difficult to apply to certain types of expert evidence, including novel areas.”  Id. at ___ (slip op. at 4).  As discussed below, the Court in In re Accutane Litig., 234 N.J. 340, 396-99 (2018), had adopted a standard similar to Daubert in certain civil cases, shifting “toward an approach that focuses directly on reliability by evaluating the methodology and reasoning underlying proposed expert testimony.”  Id. at ___ (slip op. at 3-4).

In Olenowski, the Court concluded that Daubert’s focus on methodology and reasoning, which it applied “in civil cases, was a superior approach to criminal cases as well.”  Id. at ___ (slip op. at 23).  The Court found that under Daubert and Accutane, trial courts should “directly examine the reliability of expert evidence by considering all relevant factors, not just general acceptance.  Focusing on testing, peer review, error rates, and other considerations better enables judges to assess the reliability of the theory or technique in question. . . .  Courts are also in a better position to examine novel and emerging areas of science.”  Id. at ___ (slip op. at 23) (citations omitted).  Further, the Court found that “[a]dopting a Daubert-type standard for criminal cases is also consistent with our Rules of Evidence.  Like the federal rule, N.J.R.E. 702 does not require a finding of general acceptance before expert testimony can be admitted.”  Id. at ___ (slip op. at 23-24).  Moreover, the ruling “aligns with the approach taken by a majority of states.  Most have adopted some form of the Daubert standard, either explicitly or implicitly, in both civil and criminal cases.”  Id. at ___ (slip op. at 26).

            Nonetheless, as in Accutane, the Court in Olenowski declined “to embrace the full body of Daubert case law as applied by state and federal courts.”  Id. at ___ (slip op. at 26) (quoting In re Accutane Litig., 234 N.J. at 399).  The Court held that the “Daubert factors will help guide trial courts as they perform their important role as gatekeepers.  But Daubert’s non-exhaustive list of factors does not limit trial judges in their assessment of reliability. The same is true for caselaw from other jurisdictions, which can be persuasive but is not controlling.”  Id. at ___ (slip op. at 26).  The Court held that “[t]he focus in criminal cases, as in civil matters, belongs on the soundness of the methodology and reasoning used to validate the expert opinion or technique.”  Id. at ___ (slip op. at 26).

Lastly, the Court held that “[n]othing in today’s decision disturbs prior rulings that were based on the Frye standard.  Future challenges in criminal cases that address the admissibility of new types of evidence should be assessed under the new standard outlined above. The same is true for challenges to the admissibility of evidence that has previously been sanctioned but the scientific reliability underlying the evidence has changed.”  Id. at ___ (slip op. at 27).

The Court also stressed that, “[t]o be clear, the standard we adopt today applies not only to testimony based on scientific knowledge but also to testimony based on technical or other specialized knowledge.”  Id. at ___ (slip op. at 27).

  1. Civil cases– In re Accutane Litig., 234 N.J. 340 (2018)

Five years earlier, in Accutane, the Court had adopted the factors identified in Daubert, 509 U.S. at 593-95, and the methodology-based approach for determining scientific reliability in certain areas of civil law.  234 N.J. at 398-99.

In Accutane the plaintiffs brought a civil mass tort action, alleging a causal connection existed between taking Accutane, a prescription drug used in the treatment of acne, and Crohn’s disease, a chronic gastrointestinal illness.  Id. at 346.  The mass tort action spanned more than a decade, during which several epidemiological studies were published all of which concluded that there was no causal relationship between Accutane and Crohn’s disease.  Ibid.  The plaintiffs’ experts disputed the conclusions of those studies and relied on other facts and forms of data to assert “the contrary view.”  Ibid.  The defendants challenged the methodology used by the plaintiffs’ experts as unreliable and moved to exclude it.  Ibid.

The New Jersey Supreme Court granted certification, in part, on the question of whether New  Jersey’s standard for assessing the reliability of expert witnesses needed clarification.  Id. at 347.  The Court found “little distinction between Daubert’s principles regarding expert testimony and our own, and believe[d] that its factors for assessing the reliability of expert testimony will aid our trial courts in their role as the gatekeeper of scientific expert testimony in civil cases.”  Ibid.  Thus, the Court reconciled the “standard under N.J.R.E. 702, and relatedly N.J.R.E. 703, with the federal Daubert standard to incorporate its factors for civil cases.”  Ibid.

The Court in Accutane wrote that Daubert had identified the following non-exhaustive list of factors for courts to consider using for assessing the reliability of scientific expert testimony:

1)  Whether the scientific theory can be, or at any time has been, tested; 2) Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a “sine qua non”; 3) Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique’s operation; and 4) Whether there does exist a general acceptance in the scientific community about the scientific theory.

[Id. at 398 (quoting Daubert, 509 U.S. at 593-95.]

The Court held that it was “persuaded that the factors identified originally in Daubert should be incorporated for use by our courts.  The factors dovetail with the overall goals of our evidential standard and would provide a helpful—but not necessary or definitive—guide for our courts to consider when performing their gatekeeper role concerning the admission of expert testimony.”  Id. at 398-99.

The Court in Accutane held that “[o]ur view of proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology.  When a proponent does not demonstrate the soundness of a methodology, both in terms of its approach to reasoning and to its use of data, from the perspective of others within the relevant scientific community, the gatekeeper should exclude the proposed expert testimony on the basis that it is unreliable.”  Id. at  399-400.

  1. Family Part Proceedings

Although the Court in Olenowski and Accutane did not specifically address whether the Daubert standard also applies to the admission of expert testimony under N.J.R.E. 702 in Family Part cases, a fair reading of the opinions supports that application.  Significantly, the Court did not specifically carve out Family Part proceedings, as it had prior to Olenowski for criminal cases.  Nor would there be any basis to make such a distinction—Family Part cases are civil cases.  In fact, the Court in Olenowski broadly held that “[t]he focus in criminal cases, as in civil matters, belongs on the soundness of the methodology and reasoning used to validate the expert opinion or technique.  State v. Olenowski, 253 N.J. at ___ (slip op. at 26).  Thus, it is a fair conclusion that the Daubert-type standard applies to family part proceedings in assessing the reliability and admissibility of expert testimony on scientific, technical or other specialized knowledge under N.J.R.E. 702.  Id. at ___ (slip op. at 27).

Moreover, recently the Appellate Division in N.J. Div. of Child Prot. & Permanency v. V.F., 457 N.J. Super. 525, 535 (App. Div. 2019), held that the Daubert standard applied in assessing the admissibility of expert testimony in a Title 9 proceeding.  A Title 9 abuse and neglect proceeding is a civil (not criminal or quasi-criminal) proceeding, albeit one in which parents or guardians have certain procedural protections, including the right to a “fact-finding hearing.”  N.J. Div. of Child Prot. and Permanency v. J.R.-R., 248 N.J. 353, 369 (2021); N.J.S.A. 9:6-8.43; N.J.S.A. 9:6-8.50(d).  At the fact-finding hearing, the State bears the burden of proving by a preponderance of the evidence that the child was abused or neglected as defined in N.J.S.A. 9:6-8.21(c) and that the defendant was the perpetrator of that abuse.  “[O]nly competent, material and relevant evidence may be admitted” at a fact-finding hearing.  N.J.S.A. 9:6-8.46(b).  Although expert testimony is not required in all Title 9 civil abuse and neglect cases, it is required in cases where an adequate presentation of actual harm or imminent danger cannot be made without the use of experts.  N.J. Div. of Youth & Fam. Servs.  v. A.L., 213 N.J. 1, 29 (2013).   The appropriate standard to evaluate the admissibility of expert testimony under N.J.R.E. 702 in Title 9 and Family Part cases in general are the standards outlined in Daubert as adopted by the Court in Accutane and Olenowski.

The law on the admissibility of expert testimony in New Jersey has significantly changed.  If you are facing criminal charges, you should immediately reach out to our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and

you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your criminal case at (862) 315-7929.

[1] This case has not yet been published in the official reporter.  I have thus included slip opinion page cites to the case found on the New Jersey Court’s website at https://www.njcourts.gov/sites/default/files/court-opinions/2023/a_56_18.pdf.