Keller, P.J., filed a concurring opinion.

The central question in this case is whether, and to what extent, an appellate court may consider matters not in the record when reviewing a trial court's decision to admit or exclude scientific evidence. The answer is that the appellate court should consider only material that is in the record and matters that may be judicially noticed. The reliability of a scientific theory or technique should be judicially noticed under the following circumstances: (1) when it is a matter of common knowledge, (2) when widely available court decisions show that reliability has been litigated elsewhere in fact-finding forums to a degree sufficient for the appellate court to conclude that reliability is well-established, and (3) when a prior determination of reliability has been made by an appellate court whose pronouncements are binding in the jurisdiction. As will be discussed below, appellate courts should never conduct their own independent research of the scientific literature.

An appellate court that consults scientific literature on its own initiative thrusts itself into the position of a fact finder - a position appellate courts traditionally do not occupy and for which they are ill-suited. No matter how careful the appellate investigation, there is always the risk that appellate research will fail to uncover scientific sources that are crucial to determining the reliability of a scientific theory or technique. ⁽¹⁾ Moreover, appellate courts cannot hear live testimony, and such testimony may be important to litigating a particular scientific claim. Experts practicing in the field may have knowledge and experience beyond what is reflected in written treatises. ⁽²⁾ As a result, the extent to which a certain scientific treatise or specific assertions within that treatise may be relied upon may be a legitimate subject of litigation that only a fact-finding court can fully address. Consequently, the ability to rebut scientific literature with live expert testimony is an important part of the process of determining the reliability of a scientific theory or technique. ⁽³⁾ Cross-examination can also be utilized to test the credibility of the sources upon which the parties rely. In line with this reasoning, several appellate courts in other jurisdictions have held that a trial court must conduct a reliability hearing before an appellate court can decide for the first time that a scientific theory's or technique's reliability can be judicially noticed. ⁽⁴⁾

The difficulties that result from appellate courts relying upon material outside the record manifest themselves most clearly in the current trend of citing to internet sources in appellate opinions. While some problems arising from this practice, such as evolving content and vanished content, do not carry over completely to the use of outside-the-record texts and treatises, many of the core arguments against the use of internet references apply with full force to the latter situation. ⁽⁵⁾ [W]hen an appellate court goes outside the record to determine case facts...it ignores its function as a court of review, and it substitutes its own questionable research results for evidence that should have been tested in the trial court for credibility, reliability, accuracy, and trustworthiness. ⁽⁶⁾

Resort could be made to opinion polls, to information on the internet, to articles in psuedo-scientific magazines, or even to authentic treatises that are just wrong. While I trust appellate courts to do their best to sort out the reliable from the unreliable, I trust cross-examination more. Rules of evidence and procedure protect the reliability of the outcome of trial. It is a mistake to hope that appellate diligence can adequately substitute for these tried and true safeguards.

In the past, we have held that judicial notice of scientific literature, as opposed to scientific theory or technique, can be taken even when that literature was not presented by either party at trial or on appeal. ⁽⁷⁾ As I have discussed above, such a holding carries the concept of judicial notice too far. Insofar as they purport to give an appellate court the ability to conduct an independent investigation of outside-the-record scientific literature, those cases are rightfully overruled by the Court's opinion today.

Judge Keasler contends that scientific reliability should be reviewed de novo and that a de novo standard of review means, or necessarily includes, review of outside-the-record material. Without commenting on whether a de novo review is appropriate, I must express my disagreement. Equating de novo review with an outside-the-record examination confuses the "how" of appellate review with the "what" of appellate review. The "how" of appellate review involves the amount of deference an appellate court owes a trial court. Whether outside-the-record material may be considered is a separate question, involving the "what" of review. In Jones v. United States, the District of Columbia Court of Appeals recognized that a de novo review, in this context, does not necessarily mean an outside-the-record review:

De novo review in this context, however, is not self-explanatory. Does it simply mean review limited to the trial record, but without required deference to the trial court's findings and analysis? Or does it also permit appellate court reference to sources outside the record? If so, what kinds of sources: legal and scientific articles, as well as judicial decisions from other jurisdictions? If so, is one type of outside source entitled to greater weight than another? In any event, may the appellate court rely primarily or even exclusively on sources outside the record, or is the probative value of such sources limited to buttressing essential expert testimony of record? ⁽⁸⁾

While holding de novo to be the proper standard of review, ⁽⁹⁾ the D.C. Court declined to rely upon outside-the-record scientific literature; instead the court relied upon other cases in which the validity of the scientific test was litigated at a fact-finding hearing, ⁽¹⁰⁾ a matter which I address later in this opinion.

We have held that the first two Kelly ⁽¹¹⁾ criteria - the reliability of the underlying scientific theory and the reliability of the technique applying the theory - can be determined through judicial notice if the validity of the theory or technique is well-established. ⁽¹²⁾ When a scientific theory or technique is amenable to judicial notice, the proponent is relieved of the burden of producing evidence on that question. ⁽¹³⁾ For this reason, I must disagree with the Court's contention that "judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability." ⁽¹⁴⁾ The purpose of judicial notice is to relieve the party of the burden of having to fortify the record. And although the trial court did not proffer an adequate basis for taking judicial notice, if there is such an adequate basis, an appellate court should uphold the trial court's decision, just as an appellate court would in any case in which a trial court's decision was correct on an applicable theory of law that was not in fact litigated before the trial court. ⁽¹⁵⁾ I turn, then, to examining the permissible bases for taking judicial notice.

Some scientific theories and techniques are so well known that they are matters of common knowledge. ⁽¹⁶⁾ Examples of this type of matter are the laws of thermodynamics ⁽¹⁷⁾ and the fact that the process of photography is capable of producing a correct likeness of an object. ⁽¹⁸⁾ Other examples would be the uniqueness of fingerprints and DNA. In such cases, judicial notice may be taken without a fact finding hearing and without consulting any scientific literature. ⁽¹⁹⁾

Appellate courts often look to cases in other courts and other jurisdictions to help determine whether judicial notice should be taken of the validity or reliability of a scientific theory or technique. ⁽²⁰⁾ There is good reason for doing so because, as the Supreme Court of Vermont observed, scientific or technical evidence that is novel in one jurisdiction is often not novel in others. ⁽²¹⁾ Even if the trial court in the case under consideration did not conduct an extensive evidentiary hearing, that trial court (or an appellate court reviewing the case) can use the decisions of other appellate courts that had the benefit of an extensive reliability hearing held at trial:

In many cases, like this one...the issue is whether a certain category of evidence is admissible, often in particular types of cases that are recurring. In some cases both the trial court and this Court can fully evaluate the reliability and relevance of the evidence generally based on the decisions of other appellate courts. In this way, we can avoid conducting our own lengthy and expensive evidentiary hearing aimed at establishing, or attacking, the foundation for the disputed expert testimony. We are not suggesting that the new standard for admissibility has somehow become general acceptance among appellate courts. Irrespective of the decisions of other courts, the responsibility for determining the admissibility of evidence in Vermont courts remains with our trial judges, and on appeal with this Court. However, scientific or technical evidence which is novel to us is frequently not novel to many other state and federal courts. To the extent the evaluation of these courts is complete and persuasive, we can affirmatively rely upon it in reaching our own decision. ⁽²²⁾

For example, in United States v. Jakobetz, the Second Circuit, based upon an extensive reliability hearing at trial, took judicial notice of the general reliability of RFLP-type DNA testing. ⁽²³⁾ The Eighth Circuit, confronted with the same issue as one of first impression, took judicial notice of the reliability of this type of evidence based upon Jakobetz's earlier, well-supported holding, saying:

Although Jakobetz was written before Daubert, the court employed a reliability approach to Rule 702 similar to that taken in Daubert. We conclude that the Second Circuit's conclusions as to the reliability of the general theory and techniques of DNA profiling are valid under the Supreme Court's holding in Daubert, and hold that future courts can take judicial notice of their reliability. ⁽²⁴⁾

In Jones, the District of Columbia Court of Appeals observed that numerous courts have taken this approach:

Perhaps because reliance on articles to establish general acceptance is problematic, more appellate courts, confronted by trial court rulings not based on expert testimony, have been willing instead to sustain the rulings primarily on the basis of judicial notice of other court opinions which themselves were based in substantial part on expert testimony. A number of appellate courts have altogether dispensed with the need for expert testimony at trial if (1) other courts have established, from expert testimony and other sources, the general scientific acceptance of the particular test at issue, and (2) the records and judicial elaborations of these other cases are sufficiently complete and persuasive that the appellate court confidently can incorporate the work of other courts by reference....Expert testimony in other cases, subject to cross-examination, can be probative of general acceptance of a scientific technique; thus, judicial notice of it is appropriate....The reviewing court, of course, has to take care that judicial notice of other court opinions is limited to comprehensive expert testimony on the general acceptance issue; otherwise, there is a danger that reliance on other judicial opinions could, in effect amount to delegation of decision-making to another court which itself ruled on the basis of an inadequate record. ⁽²⁵⁾

The Jones Court followed this method in the case before it:

We therefore rely primarily on a trial court decision from our own jurisdiction, based upon expert scientific evidence in a record with which we are familiar and in which we have confidence because of the thoroughness with which counsel tried the case and the judge evaluated the evidence. We rely secondarily on, and thus confirm our judgment by reference to, judicial opinions from other jurisdictions which have reached the same result....(Parenthetically, we emphasize that we do not rely, additionally, on an independent review of scientific or legal literature discussing [the scientific test in question]. We prefer to rely upon judicial decisions which themselves have a trial record - or judicially notice a trial record - that reflects expert testimony, subject to cross-examination about [the scientific test]). ⁽²⁶⁾

A less exacting inquiry should be required if a large number of jurisdictions recognize the validity or reliability of a scientific theory or technique. A court could take judicial notice based upon the great weight of authority, which is what occurred when the acceptance of DNA testing among appellate courts had become widespread. ⁽²⁷⁾

When a scientific theory or technique's validity or reliability has been shown so convincingly before a fact-finder that an appellate court can conclude the matter should be judicially noticed, the appellate court can decree that the matter will henceforth be the subject of judicial notice. In such instances, judicial notice of the reliability of the scientific theory or technique could then be taken by trial and appellate courts within the decreeing court's jurisdiction in future cases in which the issue arose. ⁽²⁸⁾

The scientific literature and cases cited by the State in its petition and briefs before us were never presented to the Court of Appeals. For this reason, I must disagree with the dissent's suggestion that the case be remanded to address these sources - or even with any suggestion that the case be remanded for the more limited judicial notice process I have outlined. No one suggests that the Court of Appeals was required to investigate these sources on its own - only that the lower court could have done so. I see little point in remanding the case to that court to consider, at its discretion, authorities not presented on initial submission. Since the case is currently before us, I will address the question of reliability under the standards I have proposed.

Under those standards, an independent review of the scientific literature is not permitted. So I look to the trial record and to permissible methods of taking judicial notice. It is clear from the trial record that the urinalysis technician did not know how the machine works and was not in a position to give an expert opinion on the reliability of the scientific technique upon which the machine operated. The trial court admitted the evidence because of past litigation in which the same urinalysis operator testified. But we do not have knowledge of these past instances of litigation, and they were not included in this record. And because the State did not present other expert testimony, the present record does not contain sufficient evidence of the reliability of the machine and test. ⁽²⁹⁾ The next question is whether reliability can be judicially noticed. The reliability of the ADx machine or the FPIA ⁽³⁰⁾ test conducted by that machine ⁽³¹⁾ is not a matter of common knowledge. Nor is there a prior case from this Court holding the machine or test to be reliable. The remaining question is whether other courts have addressed this issue in a manner that permits us to take judicial notice of reliability.

In its brief, the State cites three cases: Koenig v. Vannelli, ⁽³²⁾ Penrod v. State, ⁽³³⁾ and Carter v. State. ⁽³⁴⁾ Koenig involved an ADx test conducted on a prison inmate, who tested positive for marijuana. ⁽³⁵⁾ In a footnote, the Ninth Circuit stated "The ADx test is a fluorescein polarization immunoassay test (FPIA) that is used to detect marijuana and other drugs in biological fluids. When properly performed, FPIA tests for cannabinoids are generally accurate." ⁽³⁶⁾ As authority for this proposition, the Ninth Circuit cited a medical article. ⁽³⁷⁾ The court did not say how it learned of the medical article and made no reference to a fact-finding hearing at which the reliability of the ADx machine or FPIA testing was litigated. Without any assurance that the Ninth Circuit's holding is based upon a fact-finding hearing, we should not factor its holding of reliability into a judicial notice analysis. The case does establish that ADx testing occurred as early as 1992.

Penrod is an Indiana intermediate court opinion that addressed whether the trial court had erred in admitting ADx test results. ⁽³⁸⁾ In that case, the defendant conceded, apparently at trial, ⁽³⁹⁾ that: "there is no difference between" the ADx machine "and the EMIT Cobus or the Seva Corporation...Those are basically the same technologies. Although the names may be a little different they are basically the same." ⁽⁴⁰⁾ On appeal, the defendant contended that the State had failed to prove the scientific reliability of the ADx machine. ⁽⁴¹⁾ Citing the Jones case from the District of Columbia Court of Appeals, ⁽⁴²⁾ the Penrod court recognized that the EMIT test had gained general acceptance in the scientific community. ⁽⁴³⁾ Referring to the defendant's concession that the ADx and EMIT tests were basically the same, the Indiana appellate court held that, "[b]ased upon this statement," the trial court did not err in admitting the evidence. ⁽⁴⁴⁾ The court articulated no other basis for holding the ADx test to be reliable.

It is unclear whether the Penrod court intended a broad holding that the ADx test was reliable for all future cases or a narrow holding that the trial court did not abuse its discretion in admitting the evidence in the case at hand. If the former, the basis for that holding - the defendant's concession - is tenuous. While the defendant's concession was adverse to his position, such a concession can hardly be considered an adequate basis for formulating a general rule applicable to all cases. However, the wording of the opinion lends at least some support to the latter interpretation, and in Carter, the same court of appeals held that Penrod's holding applied only to that case:

In Penrod, we noted that the Record contained a statement that "there is no difference between [the] Abbott Laboratory machine...or the Seva Corporation." Penrod, 611 N.E.2d at 654. This reference is insufficient to allow judicial notice concerning the machine at issue in this case. The Penrod decision indicates that this statement was made by the probationer or his counsel; thus, while it was a sufficient basis for our decision in Penrod, it does not form a sufficient basis for acceptance of such evidence in other cases. ⁽⁴⁵⁾

Carter involved, among other things, a question concerning the reliability of a urinalysis test named in the record as "CIVA," which may have been an inaccurately transcribed spelling of "Seva," which would denote the test devised by Seva Corporation. ⁽⁴⁶⁾ Aside from holding that Penrod had no application beyond its own facts, the Indiana Court of Appeals also held that Penrod involved only the ADx system and did not apply to the "CIVA" test at issue. ⁽⁴⁷⁾ One judge dissented, citing Penrod's holding based upon the defendant's concession, which mentioned ADx, EMIT, and Seva. ⁽⁴⁸⁾

The Indiana Supreme Court reversed. ⁽⁴⁹⁾ Concerning the urinalysis test, the court stated, "we note Judge Friedlander's dissent where he observed, 'it is beyond debate that urinalysis has achieved a sufficient level of scientific reliability to be accepted in evidence in our courts' [citation omitted]. Urinalysis technology is hardly novel and has become a conventional means of drug-testing, the results of which have been deemed reliable in Indiana courts." ⁽⁵⁰⁾ In support of its statements, the Indiana Supreme Court cited Judge Friedlander's dissent and Penrod and, relying upon Penrod's quotation of the defendant's concession in that case, noted that "Penrod also references 'Seva' urinalysis machines at issue in the case before us." ⁽⁵¹⁾ The inescapable conclusion is that the Indiana Supreme Court's holding in Carter flowed solely from the defendant's concession in Penrod. And in the case of Carter, the concession was used to support the Seva machine's reliability, a proposition that was not even at issue in Penrod. The State's cases do not provide sufficient basis to hold that the ADx machine and the FPIA test are reliable.

My research has, however, uncovered a few other cases. In People v. Toran, an Illinois Court of Appeals addressed a claim that a probationer's confession of cocaine use was involuntary. ⁽⁵²⁾ The court held that admission of the confession, if error, was harmless because of positive drug test results. ⁽⁵³⁾ The defendant's urine was tested (in 1989) by two different methods: (1) the ADx analyzer and (2) the Toxi-Lab thin layer chromatography test; both tests indicated the presence of cocaine. ⁽⁵⁴⁾ According to the Illinois court, "Testimony was presented that both testing methods were generally accepted as reliable within the chemistry field." ⁽⁵⁵⁾ So, as early as 1989, the ADx analyzer was in use, and there was testimony at that time that tests conducted by the machine were generally accepted as reliable, at least as to cocaine. It is questionable, however, whether such testimony establishes the test's reliability for determining the presence of marijuana.

More evidence of reliability surfaced in 1993 in McCoy v. Lockhart, an unpublished opinion by the Eighth Circuit. ⁽⁵⁶⁾ In that case, an inmate filed against the Arkansas Department of Corrections (ADC) a 42 U.S.C. §1983 action claiming that his due process rights had been violated by a random "unreliable" urinalysis test that returned a positive result for marijuana. ⁽⁵⁷⁾ After a trial, ADC submitted an affidavit from its Administrator of Medical and Dental Services explaining that ADC utilized the "ADx system" and a second type of test to confirm the results. ⁽⁵⁸⁾ The affidavit further attested that "the ADx system was comparable to the 'EMIT system' in accuracy and sensitivity." ⁽⁵⁹⁾ This post-trial affidavit was never contested. ⁽⁶⁰⁾ In written findings of fact, the magistrate judge held that ADC's drug testing method was reliable. ⁽⁶¹⁾

Although not addressing the ADx analyzer, in Love v. State the Georgia Supreme Court discussed what appears to be the underlying test - described by that court as the "Fluorescence Polarization Eminase (FPIA)" test. In that case, expert witnesses discussed the FPIA method as one of two methods used by the Georgia Bureau of Investigation to determine the presence of marijuana in urine. ⁽⁶²⁾ In a California civil lawsuit, witnesses testified to three different methods of analyzing urine for the presence of drugs: (1) enzyme multiplied immunoassay technique (EMIT), (2) fluorescence polarization immunoassay (FPIA), and (3) gas chromatography/mass spectrometry (GC/MS). ⁽⁶³⁾ The reliability of these various tests was not discussed, except to observe that the practice of the laboratory was to test under one of the first two, and if a positive result occurred, to retest under the third method. ⁽⁶⁴⁾

In 2002, a California court of appeals addressed the admissibility of ADx test results in People v. Nolan. ⁽⁶⁵⁾ The defendant was tested by the ADx machine. He tested positive for marijuana and his probation was revoked. Id. at 333. The California court began by citing cases holding that urinalysis is a generally accepted method of drug testing. ⁽⁶⁶⁾ The court further stated that "The ADX Abbott test has reached a general 'level of acceptance' in the scientific community...[and] is an accurate test for the presence of marijuana in biological fluids." ⁽⁶⁷⁾ For support, the court cited Carter, Penrod, and Koenig. ⁽⁶⁸⁾ Citing Toran, the California court also remarked that the ADx test had been used before to test for cocaine, ⁽⁶⁹⁾ and the court observed that the ADx machine had been used to perform thousands of tests in the local drug court program. ⁽⁷⁰⁾ The court compared the ADx test to the EMIT test: "Both the ADX Abbott and the older EMIT (enzyme immunoassay test) use well-accepted immunoassay scientific technique to detect drugs in urine." ⁽⁷¹⁾ In support of this reliability comparison, the court cited Koenig, Penrod, Carter, and Spence v. Farrier, ⁽⁷²⁾ an Eighth Circuit case addressing the reliability of EMIT testing. ⁽⁷³⁾ Finally, the California court indicated that its focus was on the methodology, not the machine carrying out the methodology: "There will always be new devices to implement established scientific methods. But a Kelly ⁽⁷⁴⁾/Frye ⁽⁷⁵⁾ hearing is not required for new devices; it applies to new methodologies." ⁽⁷⁶⁾

The California court's observation that urinalysis, in the abstract, is generally accepted is not particularly helpful because there are several different methodologies for conducting urinalysis testing. General acceptance of "urinalysis testing" could be based upon tests not at issue in the case (the gas chromatography/mass spectrometry test, for example). Also unhelpful is the court's distinction between machine and methodology, and its insistence that the machine itself need not be shown reliable. Not only does this position contradict our Kelly case, which requires that the "technique applying the theory" be shown reliable, ⁽⁷⁷⁾ but analysis of the cases indicates that various urinalysis tests employ different methodologies, even if they may obtain similar results. While the Nolan court points out that FPIA and EMIT are both immunoassay tests, that observation is likewise of limited value because the caselaw suggests that they are different tests, even if they share some common characteristics. And to the extent the California court relied upon the Koenig, Penrod, and Carter cases, it relied upon a foundation of sand. On the other hand, the Nolan court did add the fact that the ADx machine had been used in drug court to perform thousands of tests, and it referred to Toran, in which there was live testimony about the reliability of the ADx system.

An issue that has arisen in some of these cases is the comparison between the ADx/FPIA system and the EMIT system. The significance of that comparison is that the EMIT system has been overwhelmingly accepted as reliable. ⁽⁷⁸⁾ The reliability of that test has been litigated extensively before fact-finders, with the parties being able to offer live testimony and to conduct cross-examination. ⁽⁷⁹⁾ A comparison of the ADx test to the EMIT test might allow the ADx test to piggyback onto the well-recognized reliability of EMIT.

Although the references are sparse, there is at least some indication, in litigation at the trial level, that the ADx test is comparable to EMIT in its reliability. There has been at least one hearing in which live witnesses testified that the ADx test was a reliable method of detecting cocaine usage. The ADx system has been in use for fourteen years or more and has been used in thousands of cases and across multiple jurisdictions. And I have not found a single case in which the reliability of the ADx analyzer, or the FPIA method it uses, was questioned by an expert witness or a fact-finder. Although this is some evidence of reliability, and the question is perhaps a close one, the evidence is not sufficiently extensive and convincing for a court to confidently take judicial notice of ADx analyzer's reliability. Consequently, I agree that the Court of Appeals's decision should be affirmed.

KELLER, Presiding Judge

Date filed: June 4, 2003

Publish

1. Jones v. United States, 548 A.2d 35, 44 (D.C. App. 1988)("If the court finds articles tending to establish general acceptance, there will still be the risk that, despite help from the parties, the court may have failed to find relevant articles to the contrary, especially those in more obscure technical and scientific journals, rather than in law reviews").

2. Id. at 42 ("expert testimony can be helpful to update and critique some of the information available through published articles and judicial decisions").

3. See United States v. Bonds, 12 F.3d 540, 553 (6^th Cir. 1993)(refusing to take judicial notice on appeal of a NRC report because the Government would not have a chance to rebut it with expert testimony).

4. United States v. Beasley, 102 F.3d 1440, 1445 (8^th Cir. 1996), cert. denied, 520 U.S. 1246 (1997); Turner v. State, 746 So.2d 355, 362 (Ala. 1998)(citing Beasley); People v. Leahy, 34 Cal. Rptr.2d 663, 677 (Cal. 1994); State v. O'Key, 899 P.2d 663, 672-673 (Ore. 1995).

5. See, Colleen M. Barger, On the Internet, Nobody Knows You're A Judge: Appellate Courts' Use of Internet Materials, 4 Journal of Appellate Practice and Process 417 (Fall 2002).

6. Id. at 435.

7. Mata v. State, 46 S.W.3d 902, 910 (Tex. Crim. App. 2001)(citing Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App.), cert. denied, 513 U.S. 931 (1994)). On appeal, scientific literature has generally been used as support for taking judicial notice of the reliability of a scientific fact, device, or process. See Emerson, 880 S.W.2d at 764-767. However, we have also referred to taking judicial notice of the treatises themselves, id. at 765 n. 1, and the "learned treatise" exception to the hearsay rule recognizes judicial notice as a method of proving a learned treatise's reliability. See Tex. R. Evid. 803(18).

8. 548 A.2d at 41.

9. Id. at 40.

10. Id. at 46.

11. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

12. Emerson v. State, 880 S.W.2d at 764-765.

13. Weatherred v. State, 15 S.W.3d 540, 542 n. 5 (Tex. Crim. App. 2000)(citing Emerson)

14. Court's opinion at 9.

15. See Mercado v. State, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998).

16. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n. 11 (1993); City of Topeka v. Zufall, 19 P. 359, 360 (Kan. 1888).

17. Daubert, 509 U.S. at 592 n.11.

18. City of Topeka, 19 P. at 360.

19. See Daubert and City of Topeka, cited above. There might, on rare occasions, be a situation in which the reliability of a scientific theory or technique is established at trial but then, during the appeal, the unreliability of the theory or technique becomes apparent. If the unreliability of the theory or technique is truly established, and not just hypothesized or questioned, it is likely that the appellate court could take judicial notice of that fact as a matter of common or general knowledge.

20. Emerson, 880 S.W.2d at 767-768; Jones, 548 A.2d at 41-46; United States v. Martinez, 3 F.3d 1191, 1197 (8^th Cir. 1993), cert. denied, 510 U.S. 1062 (1994); United States v. Youngberg, 43 M.J. 379, 385-386 (CAAF 1995); State v. Vliet, 19 P.3d 42, 61 (Haw. 2001); State v. Taylor, 694 A.2d 907, 911-912 (Me. 1997); State v. Kinney, 762 A.2d 833, 841-842 (Vt. 2000).

21. Kinney, 762 A.2d at 841.

22. Id. at 841-842.

23. 955 F.2d 786, 799 (2^nd Cir.), cert. denied, 506 U.S. 834 (1992).

24. Martinez, 3 F.3d at 1194 & 1197; see also Beasley, 102 F.3d at 1445.

25. 548 A.2d at 44 (citing cases).

26. While it is true that the Texas standard of proof for determining scientific reliability - clear and convincing - is higher than in most states, that is simply a factor to take into account in determining whether the out-of-state litigation is sufficiently persuasive for Texas courts to rely upon.

27. Youngberg, 43 M.J. at 385-386; State v. Fleming, 698 A.2d 503, 506-507 (Me. 1997), cert. denied, 522 U.S. 1063 (1998)("we join the overwhelming number of jurisdictions that have found the overall theory and techniques of DNA profiling scientifically reliable if conducted in accordance with appropriate laboratory standards and controls"); see also Johnson v. State, 12 S.W.3d 258, 262-263 (Ky. 1999)(overwhelming acceptance of microscopic hair analysis by other jurisdictions).

28. See Jakobetz, supra.

29. Under similar circumstances, in which a trial court referred to the test before it as "apparently routine and...sufficiently cemented to be employed in the manner we employ it at this time," the District of Columbia Court of Appeals remarked, "That is not much of a record, if any, to sustain the general acceptance [of the scientific test]." Jones, 548 S.W.2d at 43.

30. Perez described the Adx analyzer as utilizing the "Fluorescence Polarization Immunoassay" method of testing.

31. The test conducted by the ADx machine is sometimes also referred to as the "ADx test."

32. 971 F.2d 422 (9^th Cir. 1992).

33. 611 N.E.2d 653 (Ind. App., 2^nd Dist. 1993).

34. 706 N.E.2d 552 (Ind. 1999).

35. 971 F.2d at 422.

36. Id. at 422 n. 1.

37. Id.

38. See Penrod, generally.

39. The Indiana court's opinion is not completely clear on when the concession was made.

40. 611 N.E.2d at 654 (ellipsis in original).

41. Id.

42. Previously cited in this opinion, ante.

43. Penrod, 611 N.E.2d at 654.

44. Id.

45. Carter v. State, 685 N.E.2d 1112, 1115 n. 4 (Ind. App., 2^nd Dist. 1997), reversed, 706 N.E.2d 552 (Ind. 1999).

46. Id. at 1115.

47. Id. at 1115 n. 4.

48. Id. at 1116-1117 (Friedlander, J. dissenting).

49. Carter, 706 N.E.2d at 554-555.

50. Id. at 554.

51. Id.

52. 580 N.E.2d 595 (Ill. App., 2^nd Dist. 1991).

53. Id. at 598-599.

54. Id. at 597.

55. Id.

56. 1993 U.S. App. LEXIS 23953 (8^th Cir. 1993)(unpublished).

57. Id.

58. Id. at *2-*3.

59. Id. at *4.

60. Id.

61. Id. at *3.

62. 517 S.E.2d 53, 56 (Ga. 1999).

63. Wilkinson v. Times Mirror Corp., 264 Cal. Rptr. 194, 196 (Cal. App., 1^st Dist., 3^rd Div. 1989).

64. Id.

65. 116 Cal. Rptr.2d 331 (Cal. App., 2^nd Dist., 6^th Div. 2002).

66. Id. at 334.

67. Id.

68. Id.

69. Nolan, 116 Cal. Rptr.2d at 334.

70. Id. at 335.

71. Id. at 334.

72. 807 F.2d 753 (8^th Cir. 1986).

73. Nolan, 116 Cal. Rptr.2d at 334.

74. People v. Kelly, 130 Cal. Reptr. 144 (Cal. 1976).

75. Frye v. United States, 293 F. 1013 (D.C. App. 1923).

76. Nolan, 116 Cal. Rptr.2d at 334.

77. See Kelly v. State, 824 S.W.2d at 573.

78. Jones, 548 F.2d at 44-46 (citing cases).

79. Id.