'Oddone' and Experience-Based Expert Opinion
The New York courts adhere to the rule set forth in Frye v. United States, 293 F. 1013 (DC Cir. 1923), in determining the admissibility of expert testimony based upon novel scientific principles or procedures.1 The Frye rule, as explained by the Court of Appeals in People v. Wesley, 83 N.Y.2d 417, 422 (1994), requires the scientific principle or technique to be "sufficiently established to have gained general acceptance in the particular field in which it belongs." In essence, Frye permits experts who know the most about a principle or procedure to first experiment and then study it, forming a technical jury that must pass upon its status before the jury hears the opinion based upon such principle or procedure.2
The limited purpose of the Frye rule is to ensure the opinion is sufficiently reliable to justify its admission, which is accomplished by the ascertainment of whether the opinion is based upon accepted scientific principles rather than simply the expert's own unsupported belief, with the goal of "protect[ing] juries from being misled by expert opinions that may be couched in formidable scientific terminology but are based on fanciful theories."3
By its own words, Frye applies only to the use of novel scientific principles or procedures. Thus, a threshold question in applying Frye is whether the principle or procedure involved is "scientific" and if so, whether it is "novel." In People v. Oddone, 2013 NY Slip Op. 08291 (Dec. 12, 2013), the Court of Appeals addressed the first part of this question in the context of an expert opinion based on the expert's personal experience, i.e., what the expert had observed, heard and read about particular cases. The court unanimously held in an opinion authored by Judge Robert S. Smith that expert opinion so derived is not subject to Frye because it is not the product of "science."4
Notably, the court, having reached such conclusion, then concluded the opinion was properly admitted at trial, strongly suggesting that as the expert was qualified, and the bases relied upon were derived from his personal knowledge, there were no further limitations on non-scientific expert testimony. Given its importance as the ruling was one of first impression for an appellate court in New York, and as well its potential for the allowance of "junk science" opinions, Oddone will be the focus of this column.
'People v. Oddone'
Defendant was convicted of manslaughter in the first degree for causing the death of the victim by holding him in a headlock. However, the victim's death was not caused by asphyxiation but was a result of a cardiac arrest resulting from overstimulation of his carotid sinus by the headlock.5 A critical issue in the case was how long defendant held the victim in the headlock.
The prosecution argued that the headlock was maintained for so long, two to four minutes, that defendant must have intended to inflict serious physical injury on the victim; and defendant countered that the victim's death was a "tragic accident that resulted from the brief application of a headlock that in someone without the victim's pre-existing medical risk factors ordinarily would be benign."6 At trial, the testimony as to the duration of the headlock conflicted. The prosecution's witnesses gave estimates at somewhere near three minutes, and the defense witnesses gave shorter estimates of less than a minute.
In order to prove its contention as predicated upon its witnesses' testimony as to duration, the prosecution called Dr. James Wilson, a deputy medical examiner. He testified, among other matters, that the victim's death could only be explained by the application of two to four minutes of neck compression by the headlock. He inferred this duration from two facts: his own observation at the autopsy of "petechiae"—red spots caused by bursting of blood vessels—on and around the victim's eyes; and the observations of several witnesses that, by the time the incident ended, the victim's face had turned purple. As to the petechiae, Wilson testified in this exchange:
Q. Could you tell us, Doctor in your experience how long it would take for this type of petechiae to be present…around his eyes, in the skin surrounding his eyes?
A. Well, in my experience and understanding of how this process occurs an injury of this sort would take matter of minutes, 2, 3 perhaps 4, with neck compression [instead of] some kind of a struggle. So there may be slight variations in the pressure from time to time, but matter of a few minutes, something in the range of 2, 3, 4 minutes.
As to the discoloration of the victim's face, the questioning and testimony continued:
Q. In your opinion, Doctor, how long would it take for the blood in the veins that is not able—that is being squeezed and kept in the head, how long would it take in order for that purple cast or coloration to occur in [the victim's] face?