Drug Recognition Evidence (Part 2)

The Court continued in relevant part: Judge Lisa concluded in a 332-page report that DRE evidence should be admissible under the Frye standard. Counsel discussed error rates associated with DRE evidence in their briefs to the Special Master and the Court. But although error rates are expressly considered under Daubert, they are not directly covered by Frye’s general acceptance standard. In light of that, the Court asked the parties and amici to brief “whether this Court should depart from Frye and adopt the principles of Daubert in criminal cases.”

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. For those and other reasons, going forward, the Court adopts principles similar to the standard outlined in Daubert to examine the admissibility of expert evidence in criminal and quasi-criminal cases.

N.J.R.E. 702 governs the admissibility of expert testimony. To satisfy the rule, it is well-settled that the proponent of expert evidence must establish three things: (1) the subject matter of the testimony must be beyond the ken of the average juror; (2) the field of inquiry 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 offer the testimony. The key issue in this appeal centers around the second requirement: whether the proposed testimony is reliable.

As a practical matter, the new issues raised in this case and the related delays should benefit defendants. Many defendants have had their cases stayed for years while our appellate courts work through the issues. With the passage of time, police witnesses’ memories tend to fade and some become unavailable due to retirement or moves outside of the department where they worked at the time they filed the underlying charges.