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Court Upholds Scientific Evidence Rule

October 28, 1994|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — The California Supreme Court, in a ruling that could help O. J. Simpson's defense, reaffirmed Thursday that novel scientific evidence must be shown to be generally accepted by scientists before it can be admitted in a trial.

The court, ruling on a field sobriety test, had been asked to substitute the state's stricter standard for admitting scientific evidence such as DNA results with a federal test that gives more discretion to the trial judge.

By a 6-1 vote, the justices declined, saying the Orange County case before them did not warrant a modification of the standard requiring general acceptance.

The court's decision to reaffirm the more conservative state standard means that Simpson's prosecutors will have to show that the DNA techniques and analysis used in the case are accepted by a cross-section of the scientific community.

The Supreme Court case has been widely followed because of its implications for Simpson, and the court Thursday took the unusual step of issuing a summary of its opinion to reporters.

"DNA has to meet the . . . standard just like any other kind of scientific evidence," said Los Angeles Deputy Dist. Atty. Brentford Ferreira, who wrote a friend-of-the-court brief urging the court to retain the state standard, "but we are confident that it will."

The California Supreme Court has not yet ruled specifically on the admissibility of DNA, and lower courts have been divided over whether certain kinds of DNA evidence meet the state standard.

Atty. Gen. Dan Lungren had urged the court to rule that "general" acceptance does not require a consensus or majority opinion by scientists.

The attorney general's office also wanted the high court to decide that statistical analysis used to determine the probabilities of a false DNA match could be admitted without meeting the standard.

Although those suggestions "may well have merit," the court majority wrote, the drunk-driving case "is not a good vehicle for addressing them."

"The general acceptance test has been the rule in California for over 40 years," said Ferreira, "and you don't willy-nilly throw out that kind of precedent. By retaining the general acceptance test, trial judges will look to scientists rather than deciding themselves the question of reliability."

Prosecutors had been divided over the standard the court should adopt. Some, including the Los Angeles County district attorney's office, feared that a looser standard would enable defendants to submit so-called "junk" science in trials.

Deputy Atty. Gen. Frederick R. Millar Jr., Lungren's DNA coordinator, said he was disappointed that the court failed to adopt the more flexible rule but pleased that the justices seemed willing to consider modifying the standard for DNA at a later date.

Although the case was watched because of its implications for DNA evidence, it dealt with a field sobriety test known as horizontal gaze nystagmus, or HGN.

The test determines a person's ability to focus on a moving object. A police officer usually holds a pen or a finger a few inches from the suspect and asks him to follow it with his eyes without moving his head. If the suspect's pupils jump, some investigators believe, it is a sign of intoxication.

The case stemmed from the December, 1990, arrest of William Michael Leahy for speeding and driving under the influence of alcohol on Pacific Coast Highway in Huntington Beach.

Leahy could walk a straight line and stand on one leg, but he failed the vision test.

A blood test 90 minutes later showed that his alcohol level exceeded the legal limit. His attorney, however, argued that the level rose after the arrest because of a drink he consumed five minutes before he was stopped.

Leahy was convicted, but a Court of Appeal later overturned the conviction because no hearing had been held to determine whether the vision test was generally accepted by the scientific community.

The California Supreme Court, in an opinion written by Chief Justice Malcolm Lucas, upheld the lower court and ordered Orange County prosecutors to submit the test to such a hearing. If it meets the state standard, the court decided, the conviction can be reinstated.

Justice Marvin Baxter dissented, arguing that "one need not be a rocket scientist to be able to observe and assess the reaction of the suspect."

Deputy Orange County Dist. Atty. Donald Clarence, the prosecutor in the case, said he expects the trial court will rule the test admissible. He also said he doubts that the Supreme Court ruling will affect many convictions because the vision test rarely is the crucial evidence leading to guilty verdicts in drunk driving cases.

In most cases, he said, the defendants would have been convicted even without submission of the test results.

But Orange County Deputy Public Defender Alan J. Crivaro predicted the test results would be ruled inadmissible, forcing the prosecutor to retry Leahy.

The ability to focus on a moving object can be impaired by caffeine and influenza, he said, and 10% of the population exhibit the vision symptoms associated with intoxication at all times.

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