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• Are their opinions legally viable? Also, when trying to determine if an expert is right for the case, make sure the preliminary conclusions reached by the expert, especially if new scientific evidence, can withstand Kelly scrutiny. Expert opinions constructed from novel scientific principles may be admissible only if the expert makes a preliminary showing of general acceptance of the new technique in the relevant scientific community. The top rated business attorney will help you in business issues and business matters.
Notably, the Supreme Court has rejected the “Frye test,” on the theory that it is at odds with the “liberal thrust” of the Federal Rules of Evidence. Moreover, the California Supreme Court has rejected Daubert and reaffirmed the more “conservative” approach enunciated in People v. Kelly. (People v. Leahy, supra, 8 Cal.4th at p. 604.)
Accordingly, what was formerly known as the “Kelly/Frye” rule in California is now simply the “Kelly” rule. (See People v. Nolan (2002) 95 Cal.App.4th 1210, 1212.)) Under the “Kelly” rule, above, evidence-based upon a new scientific method, technique or device may be received in evidence if it is reliable, furnished by a properly qualified expert, and produced through the use of proper scientific procedures.
Reliability” is the key element, and requires a showing that the new method or technique has gained “general acceptance within the relevant scientific community.” (Ibid). Something more than the bare opinion of one expert, however qualified, is required. (People v. Shirley (1982) 31 Cal.3d 18, 54.) It does not, however, require absolute unanimity of views within the relevant community. (People v. Venegas (1998) 18 Cal.4th 47, 85.) In addition, courts “must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique.
Mere numerical majority support or opposition by persons minimally on the other hand, where scientific evidence is obtained by a different procedure than that used when the test successfully underwent "Kelly” scrutiny, that different procedure must, itself, be proved reliable. (People v. Pizarro (1992) 10 Cal.App.4th 57, 76.) These factors must be considered if the opinions the expert intends to offer are inventive and not recognized in the scientific community - a common pitfall with “pay to play” experts