I concur in the Court's judgment and agree that the reliability approach concerning post-hypnotic testimony that is set out in Zani v. State, ⁽¹⁾ was carried forward under Kelly v. State ⁽²⁾ and its progeny. ⁽³⁾ However, I respectfully disagree with Zani's creation of a "clear and convincing" standard of proof for admitting post-hypnotic testimony and this Court's continued use of a "clear and convincing" standard for admitting all expert testimony. This standard might have made some sense in Zani itself, but it is not appropriate for determining the admissibility of all expert testimony under Rule 702. It is an error that this Court should rectify.

In Zani, we addressed the question of "whether hypnotically-induced testimony is admissible in Texas." ⁽⁴⁾ Although the defendant had argued that hypnotically enhanced identification testimony was per se inadmissible under Frye v. United States, ⁽⁵⁾ this Court held that a per se rule of exclusion was untenable under United States Supreme Court precedent. ⁽⁶⁾ Instead, in Zani, we adopted the reliability approach set out in an earlier Colorado Supreme Court case, People v. Romero, ⁽⁷⁾ and we quoted Romero's non-exclusive factors for trial judges to use in assessing the trustworthiness of a witness' memory recall after hypnosis. ⁽⁸⁾ This Court also stated:

This is not to say that the proponent of hypnotically refreshed testimony ought not bear a heavy burden of showing it should go to the jury. We conclude that because of the uncertainties inherent in posthypnotic testimony it is appropriate to require the proponent of such testimony to demonstrate to the satisfaction of the trial court, outside the jury's presence, by clear and convincing evidence, that such testimony is trustworthy. ⁽⁹⁾

We did not cite any authority for imposing this heightened burden of proof for determining the admissibility of evidence. In fact, in Romero, the very case that we quoted and relied upon for the factors to assist in determining the reliability of the witness' memory recall, the Colorado Supreme Court explicitly used the normal "preponderance of the evidence" standard. It stated:

While some courts have imposed a clear and convincing standard of proof on the issue of reliability, we believe the preponderance of evidence is the suitable standard for resolving this issue. The preponderance of evidence standard has often been referred to as the "orthodox view," since it is in keeping with the traditional burden applicable to the resolution of most preliminary questions of admissibility. Indeed, it has been cogently observed that the preponderance of evidence standard "is appropriate for resolving most preliminary fact questions, even in a criminal case, and even when the reliability of the ultimate verdict is arguably affected by the decision on the preliminary issue." We accordingly adopt the preponderance of evidence standard for resolving challenges to the reliability of testimony from a previously hypnotized witness. ⁽¹⁰⁾

Our "clear and convincing" standard of proof in determining the admissibility of evidence apparently snuck into Texas law without reliance upon any Texas statute, rule, or case authority. ⁽¹¹⁾

This "clear and convincing" standard for assessing the reliability, hence admissibility, of certain testimony next appeared in Kelly v. State, ⁽¹²⁾ in which this Court simply cited Zani for the proposition that this was an appropriate standard in determining the reliability of any "novel" scientific evidence under Tex. R. Evid. 702. ⁽¹³⁾ Sure enough, when we later applied the Kelly reliability factors to all "hard science" expert evidence in Hartman v. State, ⁽¹⁴⁾ and to all "soft science" expert testimony in Nenno v. State, ⁽¹⁵⁾ we simply dragged Zani's "clear and convincing" standard of proof forward. We did this in the same breath that we quoted approvingly the Supreme Court's statement in Daubert that "a rigid [Frye] 'general acceptance' requirement would be at odds with the 'liberal thrust' of the Federal Rules and their "general approach of relaxing the traditional barriers to 'opinion' testimony." ⁽¹⁶⁾ Adopting a "clear and convincing" standard for the admission of all expert opinion testimony is not "liberal," it is not logical, and it is not appropriate under the Texas Rules of Evidence.

Rule 104(a) of our Texas Rules of Evidence governs the trial court's authority to decide questions about the admissibility of evidence. ⁽¹⁷⁾ Under that rule, the trial judge is the "gatekeeper" of evidence. It is his responsibility to ensure that all evidence admitted at trial is relevant, reliable, and admissible under the pertinent constitutions, statutes, rules of evidence and common law principles.

Although Rule 104(a) does not explicitly specify a burden of proof, the United States Supreme Court has always held that the proponent of evidence (whether it is expert testimony offered under Rules 702-703, lay opinion testimony under Rule 701, documents offered under Rule 902, or any evidence offered under any other Federal Rule of Evidence) must demonstrate by a preponderance of proof that the proffered item or testimony is admissible. ⁽¹⁸⁾ We have expressly adopted that standard and cited to the seminal Supreme Court cases, Huddleston and Bourjaily, in other Rule 104(a) contexts. ⁽¹⁹⁾ The federal courts have no difficulty in using the normal Rule 104(a) "preponderance of proof" or "preponderance of evidence" standard set out in Daubert for their gatekeeping determinations on the admissibility of expert testimony. ⁽²⁰⁾

I fail to understand why we employ an entirely different standard in determining the admissibility of expert evidence than the federal courts do under exactly the same rules of evidence. I also fail to understand why we employ an entirely different standard in determining the admissibility of expert evidence than we ourselves do under any other rule of evidence except Rule 702.

Furthermore, use of a "clear and convincing" standard to determine the admissibility of expert evidence leads to anomalous results in criminal and civil cases. For example, suppose Officer Obie proposes to testify as an expert in a criminal trial on the cause of a traffic accident. The trial judge finds that his testimony is not sufficiently reliable under this "clear and convincing" standard to allow the jury to hear it. However, in a civil case, Officer Obie's same testimony on the same cause of the same traffic accident would be sufficient to support a final verdict and a large monetary recovery based on a mere preponderance of the evidence. Under our current case law, the standard for admitting expert evidence in a criminal trial is higher than the ultimate standard of proof for upholding a verdict in a civil trial. I cannot conclude that this dichotomy is logically or legally justifiable.

Therefore, while I agree with much of the Court's reasoning in this case, I respectfully disagree with its continued use of an illogical and inappropriate "clear and convincing" standard of proof for admitting expert testimony or identification testimony by a lay witness who has been previously hypnotized.

Cochran, J.

Filed: February 4, 2004.

Publish

1. 758 S.W.2d 233 (Tex. Crim. App. 1988).

2. 824 S.W.2d 568 (Tex. Crim. App. 1992).

3. We granted review to answer the abstract question of whether Zani was overruled by the Texas Rules of Evidence and Kelly v. State. Like the court of appeals, we were not asked to review whether the trial court properly applied Zani to the particular facts. See State v. Medrano, 86 S.W.3d 369, 373 (Tex. App.-El Paso 2002) ("[t]he State does not challenge the trial court's application of the Zani analysis to the facts here, and we therefore make no comment on that issue").

4. 758 S.W.2d at 234. The issue in Zani was not the reliability of expert testimony under Rule 702, but rather the reliability of a lay witness' testimony after having undergone a purportedly scientific procedure-hypnosis.

5. 293 F. 1013 (D.C. Cir. 1923) (stating that the admissibility of novel scientific expert evidence should be assessed by whether that specific science and methodology had gained "general acceptance" in the particular scientific field).

6. Zani, 758 S.W.2d at 243 (discussing Rock v. Arkansas, 483 U.S. 44 (1987)). In Rock, the Supreme Court held that the application of a per se ban upon the admission of all testimony from a defendant who had undergone hypnosis denied the defendant her constitutional right to testify on her own behalf. 483 U.S. at 55.

7. 745 P.2d 1003 (Colo. 1987). In Romero, the Colorado Supreme Court expressed the reliability concerns later stated both by this Court in Kelly v. State and those of the Supreme Court in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993):

In our view, the admissibility of posthypnotic testimony, as of any testimony, depends ultimately on whether or not it is reliable. If the testimony is reliable and would be helpful to the trier of fact, the witness' testimony should be admitted. The rule we thus adopt is incompatible with either a per se rule of admissibility or a per se rule of inadmissibility. We accordingly hold that trial courts must make an individualized inquiry in each case to determine whether the trial testimony of a witness who has been hypnotized will be sufficiently reliable to qualify for admission.

745 P.2d at 1016.

8. Zani, 758 S.W.2d at 243-44.

9. Zani, 758 S.W.2d at 243.

10. Romero, 745 P.2d at 1016-17 (citations omitted; footnote omitted).

11. "Clear and convincing" was, however, the standard of proof required by the New Jersey Supreme Court in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), when that court addressed the admissibility of hypnotically-induced testimony. We noted and quoted the Hurd decision in Zani, but we did not cite it when we announced our own decision or when we adopted the factors set out in Romero. Zani, 758 S.W.2d at 243-44.

12. 824 S.W.2d 568 (Tex. Crim. App. 1992).

13. 824 S.W.2d at 573. In Kelly, this Court expressly noted that an admissibility standard of "clear and convincing" proof was contrary to the federal standard under the corresponding Federal Rules of Evidence. We stated:

In Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), the United States Supreme Court concluded that all preliminary fact findings under Federal Rule of Evidence 104(a) are subject to the preponderance of the evidence (i.e., "more probable than not") burden of persuasion. See also Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). We need not decide today what burden of persuasion is applicable under Texas Rule of Criminal Evidence 702 when the scientific evidence proffered is not truly "novel."

Id. n.13. This Court then cited to McCormick on Evidence to support its adoption of this "clear and convincing" standard. Id. at 573. But the section cited speaks only of this heightened burden of proof in certain equity causes of action, fraud and undue influence, suits on oral contracts to make a will, suits for specific performance of an oral contract, and "miscellaneous types of claims and defenses ... where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy grounds." Edward W. Cleary, ed., McCormick on Evidence § 340, at 960-61 (1984). This section does not address the admissibility of evidence, much less that of expert testimony. Section 53 of McCormick's treatise deals with Rule 104(a) and preliminary questions of admissibility. In that section, Professor McCormick notes that the federal rules are silent on the question of an admissibility burden of proof, but "[t]he most commonly accepted standard is the preponderance of evidence test." Id., § 53, at 136 n.8.

14. 946 S.W.2d 60 (Tex. Crim. App. 1997).

15. Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).

16. Nenno, 970 S.W.2d at 561.

17. Rule 104(a) reads:

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

18. See Huddleston v. United States, 485 U.S. 681, 687 n.5 (1988); Bourjaily v. United States, 483 U.S. 171, 175 (1987) (noting that "[t]he Federal Rules ... nowhere define the standard of proof the court must observe in resolving [Federal Rule 104(a)] questions" in judicially adopting the preponderance of the evidence standard). In Daubert, the Supreme Court expressly adopted the "preponderance of the evidence" standard for determining the admissibility of expert scientific testimony. Daubert, 509 U.S. at 592, n. 10.

19. See, e.g., Alvarado v. State, 912 S.W.2d 199, 215 (Tex. Crim. App. 1995) (citing Rule 104(a) in stating that "the proponent of the evidence had the burden of proving to the trial court, by a preponderance of the evidence, that ... testimony qualified as an adoptive admission under Rule 801(e)(2)(B)"); Meador v. State, 812 S.W.2d 330, 331 (Tex. Crim. App. 1991) (citing Bourjaily in stating that proponent of evidence had burden of showing, by a preponderance of evidence, that testimony was admissible under hearsay exception).

20. See, e.g., United States v. Fullwood, 342 F.3d 409, 412 (5^th Cir. 2003) (proponent of expert testimony "has the burden of establishing, by a preponderance of the evidence, that the pertinent admissibility requirements are met," citing Fed. R. Evid. 104(a)); McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11^th Cir. 2002) ("[t]he burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and the admissibility must be shown by a preponderance of the evidence"); Meister v. Medical Eng'g Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001) (proponent has burden of establishing admissibility of expert testimony by a preponderance of proof); Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417-18 (3d Cir. 1999) (burden of establishing admissibility of expert testimony under Daubert is preponderance of the evidence); Maryland Cas. Co. v. Therm-O-Disc., Inc., 137 F.3d 780, 782-83 (4^th Cir. 1998) (Daubert requires proponent of expert testimony to meet preponderance of evidence burden of showing reliability under Rule 104(a)).