Chief Justice Rabner continued: Finally, Daubert provided a non-exclusive list of four factors, commonly referred to as the “Daubert factors” — to help courts apply the new standard. Id. at 593-94. In 2018, the New Jersey Supreme Court adopted the Daubert factors — with some qualifications — to help guide trial courts as they fulfill their role as gatekeepers and make decisions about the reliability of expert testimony in all civil cases. The Court specifically found that the Daubert factors “would provide a helpful — but not necessary or definitive — guide” for trial courts in New Jersey. In re Accutane Litig., 234 N.J. 340, 398 (2018). But the Court declined to declare New Jersey “a Daubert jurisdiction” and did not “embrace the full body of Daubert case law” from other “state and federal courts.” Id. at 399. The Court also acknowledged that, despite its broadened approach in civil cases, it had “retained the general acceptance test for reliability in criminal matters” “to date.” Ibid.
The Court has applied the Frye standard to evaluate various devices, scientific tests, and other kinds of evidence. Despite its longstanding use, Frye has posed certain difficulties and has been the subject of criticism. An expert opinion that is not reliable is of no assistance to anyone. But instead of directing judges to examine actual measures of reliability — like the soundness of the methodology used to validate a scientific theory or technique, the strength of the reasoning underlying it, and the accuracy of the theory or technique in practice — Frye only permits judges to consider the views of individuals in the relevant field. As a result, Frye has been criticized as “both unduly restrictive and unduly permissive” because “it excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.” State v. Coon, 974 P.2d 386, 393-94 (Alaska 1999).
An additional benefit to defendants with stayed DRE cases is that they can continue to drive while this litigation is pending. Some of those defendants will never face a license suspension even if it was justified on the merits. Olenowski, for one, has passed away during the pendency of his case. Thus, he will never be subject to the significant third-offense DWI penalties which include a mandatory six months in jail.
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