There is no doubt but that Dr. Swan has impressive credentials, as Justice Blackmun himself recognized in Daubert I, 509 U.S. at 583 n. 2, 113 S.Ct. at 2792 n. 2 (noting that Dr. Swan has "a master's degree in biostatics from Columbia University and a doctorate in statistics from the University of California at Berkeley, is chief of the section of the California Department of Health and Sciences that determines causes of birth defects, and has served as a consultant to the World Health Organization, the Food and Drug Administration, and the National Institutes of Health.") However, as Judge Weinstein noted in the Agent Orange litigation, the jury should "not be permitted to be misled by the glitter of an expert's accomplishments outside the courtroom" if the expert opinion is based on "untrustworthy" data or is otherwise not reliable. ... As mentioned earlier, with respect to the first listed factor, whether the expert's theory or method is generally accepted, the Ninth Circuit explained in Daubert II that in certain circumstances it may be sufficient if a minority in the scientific community accepts the methods employed, but only if the proponent demonstrates in "some objectively verifiable way that the expert has both chosen a reliable scientific method and followed it faithfully."
It was at this stage that the Supreme Court mooted the issue in 1993 with Daubert's holding that the existing rule incorporated a reliability screen, authorizing the trial judge to determine reliability (and eventually, in Kumho, essential credibility) of a qualified expert's testimony as a prerequisite for the jury's determination of the same issues. ... ¶ 48 One of the arguments for adopting Daubert is to allow trial judges to put a halt to improper verdicts from jurors misled by junk science and experts ready at the drop of a hat (or a dollar) to say anything for any party.
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 600; commented that "[q]uestions arise simply from reading [the `general observations'] part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony." ... With respect to expert testimony, Daubert relied on rule 702 of the Federal Rules of Evidence, which provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Given the degree of congruence of Brown and Daubert, we find the aspects of the Daubert decision discussed above to be persuasive, and we adopt them. Faced with a proffer of expert scientific testimony, an Oregon trial court, in performing its vital role as "gatekeeper" pursuant to OEC 104(1), should, therefore, find Daubert instructive. ... 680*680 In Daubert, the Supreme Court pointed out that, in assessing a proffer of expert scientific testimony under FRE 702, a trial court should also be mindful of other applicable evidentiary rules, such as FRE 703, 706, and 403.
At the hearing two witnesses testified: Dr. William Setzer, the director of the University of Colorado Health Sciences Center DNA Diagnostic Laboratory who was qualified as an expert in the area of molecular biology, genetics, and "DNA testing"; and Dr. Lisa Forman, an employee of Cellmark Diagnostics, who was qualified as an expert in population genetics. ... The evidence connecting the defendant to these crimes included the victim's identification of defendant, fingerprint evidence, and expert testimony that a DNA profile from seminal fluid obtained by a medical examination of the victim after the assault matched a DNA profile from a blood sample taken from defendant.
In Brown, this court abandoned special tests for the admissibility of scientific evidence in favor of resolving the problem by relying on traditional evidence law as codified in the Oregon Evidence Code (OEC), specifically OEC 401 (relevance), OEC 702 (opinions of experts), and OEC 403 (exclusion of relevant evidence on ground of prejudice, confusion or undue delay). ... Both parties' experts testified that scientists conducting DNA research agree that the PCR method accurately and reliably replicates small samples of DNA. Gerdes, defendant's expert witness, testified that he had no problem with the validity of the PCR-based DNA tests.
On appeal, he claims that Circuit Court Judge Boyd P. Mossman improperly lifted a discovery sanction previously imposed by Judge E. John McConnell. Appellant also maintains the trial court should have granted his motion in limine to exclude evidence showing that his DNA matched DNA from the scene of the crime, and that he was denied effective assistance of counsel because counsel failed to call expert witnesses to rebut the evidence introduced at the hearing of his motion. ... People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643 (1988) (expert believes that there is population substructuring but that this could be accounted for by adjusting the claimed power of identity of Cellmark test by a factor of ten to one in 140,000,000 for Caucasians and one in 84,000,000 for blacks).
While Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), supports the general proposition that the sixth amendment prohibits a state from applying an evidential rule which prevents a defendant from presenting a defense based on relevant evidence, the sixth 423*423 amendment does not make irrelevant evidence admissible and does not render admissible an expert's opinion which does not assist the trier of fact under Neb.Evid.R. 702. ... In Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), the court, considering admissibility of a "lie detector" test, enunciated a standard for admissibility of scientific evidence: "[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently 418*418 established to have gained general acceptance in the particular field in which it belongs."
Based on the trial record, relevant case law, and scientific literature, we hold PCR analysis for forensic purposes is reliable, the testimony with respect to the technique and its application was offered by a qualified expert who used adequate scientific procedures, and the evidence was relevant to the material issue of the identity of the perpetrator. ... [¶ 46] At a pretrial hearing, three defense experts testified that the serological analyses of the samples revealed polymorphic enzymes and a blood type which did not coincide with Moeller's makeup.
As interpreted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., Rule 702 requires the district court to ensure that expert evidence based on scientific, technical, or other specialized knowledge is "not only relevant, but reliable." ... The Court need nor address whether those experts' opinions are relevant under the second prong of the Daubert analysis.