I agree with the Court's answers to the State's first and second grounds for review. But I would answer the third ground "perhaps," and remand to the Court of Appeals for further review.

In its third ground, the State argues that the Court of Appeals erred because in this case, the scientific theory and technique behind the ADx analyzer are well-established. In support of its argument, the State relies on scientific literature which it did not present to the trial court or to the Court of Appeals.

The Court of Appeals conducted an abuse of discretion review, confining itself to the trial record, and found nothing to establish the reliability of the scientific theory or technique. The dissent, on the other hand, conducted a de novo review, considering scientific literature outside the record, and found the science reliable.

A majority of this Court concludes that the State's literature is "swell stuff" ⁽¹⁾ but it can not be considered because the State did not present it to the trial court. So this Court, like the Court of Appeals, is applying an abuse of discretion review.

But determining the proper standard of review for Kelly claims is a complicated endeavor. While we have previously stated that it is an abuse of discretion standard, ⁽²⁾ we have not addressed the issue directly. Instead, we have stated the standard of review without discussion. But the appropriate standard of review in this context is a subject of heated debate nationwide.

The confusion began when the Supreme Court decided Daubert but did not set forth the appropriate standard of review on appeal. ⁽³⁾ Under Frye, appellate courts had reviewed trial courts' "general acceptance" conclusions de novo, ⁽⁴⁾ but under Daubert's new test, the standard of review was unclear. ⁽⁵⁾

Courts responded to the confusion in various ways. In Florida, the court retained the Frye standard and reviewed the trial court's "general acceptance" conclusion de novo. ⁽⁶⁾ The Florida Supreme Court explained that "the general acceptance issue transcends any particular dispute. . . . Application of less than a de novo standard of review to an issue which transcends individual cases invariably leads to inconsistent treatment of similarly situated claims." ⁽⁷⁾

Before Daubert, the Maryland Supreme Court had explained that "[t]he answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case. It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge's individual discretion." ⁽⁸⁾ After Daubert, the court continued to follow the Frye test and review Rule 702 claims de novo. ⁽⁹⁾

Illinois also continued to follow Frye, not because of any reasoned formal decision to do so but simply because litigants there did not argue for adopting the Daubert test. ⁽¹⁰⁾ But the standard of review applied in that state is unclear. In People v. Miller, the Illinois Supreme Court stated that Frye claims are to be reviewed for an abuse of discretion. ⁽¹¹⁾ Despite this statement, the court proceeded to consider scientific journals outside the record. ⁽¹²⁾ Justice McMorrow criticized the majority for setting forth the abuse of discretion standard but then not applying it. ⁽¹³⁾ He argued that "the all-encompassing abuse of discretion standard . . . does not permit a reviewing court to adequately address the legal issues" in these cases and advocated a "mixed standard of review" in which trial court decisions concerning the expert's qualifications and his testimony's relevance be reviewed for abuse of discretion but decisions regarding whether a technique has achieved general acceptance be reviewed de novo. ⁽¹⁴⁾ He reasoned that a theory or technique's general acceptance in the scientific community "transcends any particular dispute" and "[a]pplication of less than a de novo standard of review to an issue which transcends individual cases invariably leads to inconsistent treatment of similarly situated claims." ⁽¹⁵⁾

Federal courts also expressed confusion after Daubert. The Sixth Circuit was particularly torn, with one panel setting forth a three-fold standard of review, and a second panel rejecting it. The first panel explained that the abuse-of-discretion standard of review "does not adequately describe the standard of review required by the Federal Rules of Evidence for the admissibility of expert opinion evidence." ⁽¹⁶⁾ The court set forth its opinion of the proper standard: the trial court's preliminary fact-finding under Rule 104(a) is reviewed for clear error; the court's determination of whether the expert's opinion is properly the subject of scientific, technical, or other specialized knowledge is reviewed de novo; and the court's determination whether the expert's opinion will assist the trier of fact is reviewed for an abuse of discretion. ⁽¹⁷⁾

But the other panel disagreed with this approach, concluding that the three-tiered standard of review lacked any precedential support. ⁽¹⁸⁾ Nevertheless, even this second panel acknowledged that "the de novo prong has some intuitive appeal to it . . . particularly . . . with respect to the validity of various types of scientific evidence." ⁽¹⁹⁾ The court admitted that "a de novo standard . . . ensures that there are not conflicting pronouncements in a circuit regarding the validity of scientific methods," but cautioned that "the distinction between scientific principles and how those principles are applied in a particular dispute should be recognized." ⁽²⁰⁾

Several states adopted this hybrid standard of review, looking de novo at the trial court's determination that a theory or technique was reliable, but reviewing the application of the science in the particular case for an abuse of discretion. The West Virginia Supreme Court held that "[t]he trial court's determination regarding whether the scientific evidence is properly the subject of scientific, technical, or other specialized knowledge is a question of law that we review de novo. On the other hand, . . . [a]ppellate review of the trial court's rulings under the relevancy requirement is under an abuse of discretion standard." ⁽²¹⁾

The Oklahoma Court of Criminal Appeals agreed. It concluded that, "[a]fter . . . considering the permanent impact of a trial judge's decision to admit novel scientific evidence, we find we should subject that decision to an independent, thorough review and not simply ask whether an abuse of discretion was committed." The court, quoting the District of Columbia court, explained that, "[g]enerally, the decision whether or not to admit expert testimony is addressed to the sound discretion of the trial court. Where the question of the general acceptance of a new scientific technique is raised, however, the proponent will often be asking the court to establish the law of the jurisdiction for future cases. . . . Accordingly, in recognition of the fact that the formulation of the law of this jurisdiction is a quintessentially appellate function, we engage in a broad review of the trial judge's determination whether the forensic use of DNA technology has gained general acceptance. In doing so, we may consider not only expert evidence of record, but also judicial opinions in other jurisdictions, as well as pertinent legal and scientific commentaries." ⁽²²⁾

Massachusetts also set forth a dual standard of review, reviewing the issue of scientific validity de novo but reviewing the application of the technique with deference to the trial court's ruling. ⁽²³⁾ The Supreme Judicial Court conceded that it was departing from the abuse of discretion standard of review used by federal appellate courts, but concluded that it was appropriate to review scientific validity decisions de novo "because the validity of a scientific methodology does not vary according to the circumstances of a particular case and because a lower court's conclusion will have applicability beyond the facts in the case before it." ⁽²⁴⁾

New Jersey agreed. In State v. Harvey, that state's Supreme Court acknowledged that "[g]enerally, appellate courts review a trial court's determination of the admissibility of evidence for an abuse of discretion." ⁽²⁵⁾ But the court nevertheless concluded that review of the reliability determination should be de novo. The court reasoned that, "[u]nlike many other evidentiary issues, whether the scientific community generally accepts a methodology or test can transcend a particular dispute." ⁽²⁶⁾ The court felt that, "[n]otwithstanding the trial court's better position to shape the record and make factual determinations, appellate courts retain an important residual role for questions concerning the admission of scientific evidence. Like trial courts, appellate courts can digest expert testimony as well as review scientific literature, judicial decisions, and other authorities." ⁽²⁷⁾ The court concluded that, "[w]hen reviewing a decision on the admission of scientific evidence, an appellate court should scrutinize the record and independently review the relevant authorities, including judicial opinions and scientific literature." ⁽²⁸⁾

During this time period, legal writers rushed to criticize Daubert and urge the Supreme Court to adopt a de novo standard of review. One writer warned that "[i]f Daubert decisions are reviewed [for an abuse of discretion] . . . , inconsistent decisions concerning the admissibility of novel scientific testimony may go unchecked from jurisdiction to jurisdiction and from judge to judge. This inconsistent standard of review inevitably may . . . confound efforts to provide uniformity under the Rules." ⁽²⁹⁾

Another author urged "courts . . . [to] consider developing a hybrid approach in which appellate courts review de novo those decisions involving general scientific propositions, but allow trial courts greater discretion with regard to the particular facts of each case." ⁽³⁰⁾ Another agreed, arguing that "[t]he gatekeeping function assumes that trial judges possess some sophistication and experience in scientific matters . . . [but] [t]here is little reason to believe that trial judges can readily equip themselves with such expertise." ⁽³¹⁾ This author proposed "de novo appellate review of district court rulings on the scientific knowledge prong of Daubert." He explained that

[e]xamination of scientific theories or methodologies to determine whether they have evolved sufficiently to amount to scientific knowledge is a task that lends itself to de novo appellate review. Such an exercise would have broad implications on subsequent consideration of the same methodology in future litigation. District court rulings on the second prong of Daubert (the fit requirement), which requires consideration of specific facts in a case, would still be reviewed under an abuse of discretion standard. But de novo appellate review of district court findings on the scientific knowledge prong of Daubert would create a body of appellate opinions that carefully review scientific theories and methodologies. As appellate courts repeatedly face the same sorts of scientific evidence, more uniform adjudication at the trial and appellate levels will result. In addition, careful appellate scrutiny would permit consideration and development of distinct validation criteria for expert testimony relating to different scientific or technical disciplines. Finally, appellate courts are also well situated to consider the broad public policy issues associated with admissibility determinations. ⁽³²⁾

In 1997, in General Elec. Co. v. Joiner, ⁽³³⁾ the Supreme Court stated, without elaboration, that federal district judges' Daubert rulings were to be reviewed for an abuse of discretion. ⁽³⁴⁾ In that case, the issue before the Court was whether an appellate court could apply a different standard of review when the district court admits scientific evidence versus when it excludes scientific evidence. The Supreme Court firmly rejected this notion, concluding that the same standard of review should apply in either instance. ⁽³⁵⁾ The Court then stated that abuse of discretion was the appropriate standard of review, but the Court did not consider the inconsistencies that this standard would cause, nor did it address the possibility of a hybrid standard of review. ⁽³⁶⁾

After Joiner, most courts employ an abuse of discretion standard of review. The Sixth Circuit put the dispute in that circuit "to rest" and adopted an abuse of discretion standard. ⁽³⁷⁾ And Massachusetts did an about-face on the issue, switching its standard of review based on the Joiner opinion. ⁽³⁸⁾

But not every state court danced to the Supreme Court's tune. An Arizona appellate court continued to apply a de novo standard of review without acknowledging Joiner. ⁽³⁹⁾ And Minnesota rejected Daubert in its entirety in an effort to retain a de novo standard of review. ⁽⁴⁰⁾ The court stated that "the potential for non-uniformity in the law under Daubert [gave it] . . . considerable cause for concern," ⁽⁴¹⁾ noting that "[c]ases built on similar facts and offering similar scientific techniques could have widely disparate results." ⁽⁴²⁾ The court concluded that its "Frye-Mack" ⁽⁴³⁾ standard, with the accompanying de novo appellate review, was "more apt to ensure objective and uniform rulings as to particular scientific methods or techniques." ⁽⁴⁴⁾

The Alaska Supreme Court followed Joiner in applying an abuse of discretion standard of review, but its decision was met with vigorous dissent. Justice Fabe contended that "[t]he determination of whether a general scientific proposition or process is reliable should not vary from case to case or from judge to judge." ⁽⁴⁵⁾ He proposed "a hybrid standard under which we would review de novo any threshold rulings on scientific validity but would review for abuse of discretion case-specific rulings on relevance and testing performance." ⁽⁴⁶⁾ He argued that a straight abuse of discretion standard would "most likely lead to inconsistent treatment of similarly situated claims" which would in turn "compromise the integrity of the judiciary in the eyes of the public." ⁽⁴⁷⁾

Moreover, the critiques of Joiner were many. One legal writer complained that "[t]he Court gave trial judges too much discretion on a topic they know little about, with no guidance for making the admissibility decisions. The result will undoubtedly be rampant individualized decisionmaking; judges will apply a number of different criteria or general principles to decide whether to permit a nonscientific expert to testify." ⁽⁴⁸⁾ Another pointed out that "the broad discretion judges now have in screening all types of experts will likely cause increased uncertainty among lawyers regarding the admissibility of expert testimony." ⁽⁴⁹⁾

One author explained that "there does not seem to be any sound basis for assuming the appellate court is any less competent in reviewing scientific evidence de novo than the trial judge. The traditional reason for deferring to the trial judge on evidentiary rulings is that the trial judge has the benefit of reviewing the demeanor of the witness to determine whether the witness is lying. Because it is not the witness's credibility at stake in scientific evidence, but the validity of the underlying methodology and application, it is not necessary to give the trial judge's observation any particular weight. Moreover, the jurisprudential policy issues transcending the facts of a given case are more appropriately resolved by appellate courts." ⁽⁵⁰⁾

A bifurcated standard of review is not unprecedented in Texas. We have applied such a review to trial court rulings on motions to suppress evidence ⁽⁵¹⁾ and motions for speedy trial. ⁽⁵²⁾ We have recognized that an abuse of discretion review is not necessarily appropriate in the context of application of law to facts when the decision does not turn on the credibility or demeanor of witnesses. ⁽⁵³⁾ Instead, an appellate court must conduct a de novo review when "the trial judge is not in an appreciably better position than the reviewing court to make that determination." ⁽⁵⁴⁾ With Kelly issues, the trial court is not in an appreciably better position in determining whether a particular scientific theory or technique is valid. Although the credibility of the testifying expert is one factor in Kelly, it is not the only factor, and the other factors do not involve credibility of witnesses. I believe appellate courts should defer to the trial court's credibility determination but review the validity of the science de novo.

There is good reason to believe that the Supreme Court would agree with a bifurcated standard of review. As explained previously, the Supreme Court was not faced in Joiner with deciding whether to apply a hybrid standard of review. Instead, the Court merely addressed whether the same standard of review should apply to trial court decisions admitting evidence and trial court decisions excluding evidence. That Court would likely adopt a bifurcated standard of review if the issue were directly before it.

But even if the Supreme Court firmly believes that all aspects of a Daubert claim should be reviewed on appeal for an abuse of discretion, its conclusion should not prevent us from applying a different standard of review in Texas. Indeed, our review of Kelly claims already differs substantially from the Supreme Court's review of Daubert claims. First, we hold that the gatekeeping hearing is mandatory ⁽⁵⁵⁾ while the Supreme Court finds it optional. ⁽⁵⁶⁾ Additionally, we hold that the proponent of the evidence must prove its admissibility by clear and convincing evidence, ⁽⁵⁷⁾ while the Supreme Court requires proof only by a preponderance of the evidence. ⁽⁵⁸⁾ Admission of scientific evidence is already more difficult in Texas than in the federal courts. Consistent with that approach, it is appropriate to apply a heightened standard of review on appeal.

The abuse-of-discretion standard is wholly inadequate in the context of Kelly claims. We should adopt a bifurcated standard of review, reviewing the reliability of a scientific theory or technique de novo, but reviewing the application of the technique in each particular case for an abuse of discretion.

Under a de novo review of a Kelly claim, the appellate court would be able to consider literature not presented to the trial court. It would be the appellate court's duty to determine de novo whether the particular scientific theory or technique is valid, and it would be able to reach that determination by reviewing any reliable authority it could locate, regardless of whether the trial judge reviewed it.

Courts across the country have considered scientific literature outside the record in conducting a de novo review of Daubert claims. ⁽⁵⁹⁾ Indeed, in all the cases discussed in the previous section, the courts understand that reviewing the validity of a scientific theory or technique de novo means reviewing literature outside the record.

Despite any implications to the contrary, "[t]rial courts are no better situated to assess the validity of scientific methods." ⁽⁶⁰⁾ This is because in most cases, "[s]uch determinations do not . . . depend on assessing the credibility of witnesses or knowledge of local conditions." ⁽⁶¹⁾ Indeed, "judicial assessment of validity might be better conducted through written briefs rather than oral testimony." ⁽⁶²⁾

In one of the earlier discussions on the topic, Kenneth Karst explains that "[a] judge without special training finds it hard to criticize an expert's methods of gathering data or the inferences he draws from them. Yet experts are fallible. Worse, they have axes to grind - at least professional axes." ⁽⁶³⁾ He continues by noting that "ultimately there is no way for the conscientious judge to escape making a determined effort to learn enough about the subject matter of the litigation to formulate his own views with the assistance - not the domination- of the experts." ⁽⁶⁴⁾

Judge Ferren of the D.C. Appeals Court discussed this issue in depth in Dean v. District of Columbia. ⁽⁶⁵⁾ He noted that "it is questionable whether a hearing with expert testimony about issues of legislative fact 'would reveal more reliable or higher quality information than is available by referring to authorities submitted in briefs by both sides, and, in appropriate cases, by additional research at the appellate level.'" ⁽⁶⁶⁾ As he explains, "[t]he advantage of such a costly exercise is likely, on too many occasions, to be marginal at best, and the further away the hearing is from the ideal model I have posited (using the most highly qualified experts), the more the judge will confront distorted, perhaps even biased, presentations and thus have to rely primarily on many non-record sources for critical scientific or social science information." ⁽⁶⁷⁾

He adds that "[t]he point not to be forgotten . . . is that the likelihood of expert testimony of record being superior to the court's own resourcefulness in finding legislative facts is often highly questionable. The quality of the paid experts too often will be limited to persons who have not done the most careful studies themselves and, in any event, may have an ax to grind that, absent very skillful cross-examination, can create a record that hides the real truth. . . . Arguably, the more complex the issue . . . the greater the risk that a hearing will yield no better, and perhaps less satisfactory, results than non-record sources, including a judge's own research into primary data, helped along, of course, by counsel's advocacy." ⁽⁶⁸⁾

Additionally, consulting literature outside the record as part of a de novo review permits the appellate court to change with the scientific times. Several states recognize that "[i]n the rapidly changing world of modern science, continuing research may affect the scientific community's acceptance of a novel technology. By reviewing post-trial publications, an appellate court can account for the rapid pace of new technology. The continuing review also recognizes that general acceptance may change between the time of trial and the time of appellate review." ⁽⁶⁹⁾ Moreover, "by examining such additional information, an appellate court can prevent any injustice rendered by the admission or exclusion of the evidence at the trial level." ⁽⁷⁰⁾

As the Arizona court recognized, when an appellate court does this, "[i]t is somewhat incongruous to call the trial court's ruling 'error.'" ⁽⁷¹⁾ Nevertheless, that court concluded that "neither logic nor authority supports confining ourselves to a snapshot, rather than viewing the motion picture, of technological advancement. If the result obtained is the product of invalid scientific theory, there is no good reason to accept it simply because we were fooled at the inception of the inquiry. . . . Thus, in surveying all information available, we consider scientific literature published, as well as cases decided, after trial." ⁽⁷²⁾

Finally, it is worth noting that we have previously approved reviewing scientific literature outside the record, although we did so under the theory of "judicial notice." In Emerson v. State, ⁽⁷³⁾ we considered scientific articles outside the record in determining whether the HGN test was reliable. We justified this approach under the notion of "judicial notice." ⁽⁷⁴⁾ And in Mata v. State, ⁽⁷⁵⁾ we cited Emerson as authority for our taking "judicial notice" of scientific literature outside the record. In retrospect, our use of the phrase "judicial notice" was misplaced in both cases. In cases involving scientific evidence, courts often take judicial notice of the validity of a particular scientific theory or technique. ⁽⁷⁶⁾ In these instances, the court is taking judicial notice of a fact - the fact that the theory or the technique is valid. It is not taking judicial notice of the literature. Judicial notice applies to facts, not authority. Instead, the courts take judicial notice of the fact that a theory or technique is valid. ⁽⁷⁷⁾

I would adopt a bifurcated standard of review on appeal. I think appellate courts should review the reliability of the scientific theory or technique de novo, and review the application of that science in the particular case for an abuse of discretion. I would remand to the Court of Appeals to give the appellate court an opportunity to apply this standard of review.

DATE DELIVERED:  June 4, 2003

PUBLISH

1. Ante, slip op. at 7.

2. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000); Hinojosa v. State, 4 S.W.3d 240, 251 (Tex. Crim. App. 1999); Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998); Clark v. State, 881 S.W.2d 682, 698 (Tex. Crim. App. 1994); Emerson v. State, 880 S.W.2d 759, 761 (Tex. Crim. App. 1994); Hicks v. State, 860 S.W.2d 419, 424 (Tex. Crim. App. 1993); Fuller v. State, 827 S.W.2d 919, 930 (Tex. Crim. App. 1992); Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992); Kelly, 824 S.W.2d at 569.

3. See Alan W. Tamarelli, Jr., Recent Developments: Daubert v. Merrell Dow Pharmaceuticals: Pushing the Limits of Scientific Reliability -- The Questionable Wisdom of Abandoning the Peer Review Standard for Admitting Expert Testimony, 47 Vand. L. Rev. 1175, 1196 (1994).

4. Id.

5. Id.

6. Brim v. State, 695 So. 2d 268, 274 (Fla. 1997).

7. Id.

8. Reed v. State, 391 A.2d 364, 367 (Md. 1978).

9. See Burral v. State, 724 A.2d 65 (Md. 1999).

10. People v. Miller, 670 N.E.2d 721, 731 n.3 (Ill. 1996); Donaldson v. Central Illinois Public Service Co. et al, 767 N.E.2d 314, 325 n.1 (Ill. 2002).

11. Miller, 670 N.E.2d at 731-32.

12. Id.

13. Id. at 738 (McMorrow, J., specially concurring).

14. Id. at 739.

15. Id.

16. Cook v. American Steamship Co., 53 F.3d 733, 738 (6th Cir. 1995).

17. Id.

18. United States v. Jones, 107 F.3d 1147, 1154 (6th Cir. 1997).

19. Id.

20. Id.

21. State v. Beard, 461 S.E.2d 486, 492 (1995).

22. Taylor v. State, 889 P.2d 319, 332 (Okla. Crim. App. 1995), quoting United States v. Porter, 618 A.2d 629, 635 (D.C. 1992).

23. Commonwealth v. Vao Sok, 683 N.E.2d 671, 677-78 (Mass. 1997).

24. Id. at 678 n.14.

25. 699 A.2d 596, 619 (N.J. 1997).

26. Id.

27. Id. at 620.

28. Id.

29. Tamarelli, supra footnote 20, at 1196.

30. Confronting the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1481, 1528 (1995).

31. Jay P. Kesan, Note, An Autopsy of Scientific Evidence in a Post-Daubert World, 84 Geo. L. J. 1985, 2037-38 (1996); David L. Faigman, et al, Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence,15 Cardozo L. Rev. 1799, 1821 (1994).

32. Id.

33. 522 U.S. 136 (1997).

34. Id. at 139. See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

35. Joiner, 522 U.S. at 141-43.

36. See State v. Coon, 974 P.2d 386, 405 n.16 (Alaska 1999) (Fabe, J., concurring and dissenting).

37. Morales v. American Honda Motor Co., 151 F.3d 500, 515 (6^th Cir. 1998).

38. Canavan's Case, 733 N.E.2d 1042, 1049 (Mass. 2000).

39. State v. Garcia, 3 P.3d 999, 1003 (Ariz. Ct. App. 1999).

40. Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000).

41. Id. at 814.

42. Id.

43. Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764, 768-69, 772 (Minn. 1980).

44. Goeb, 615 N.W.2d at 814 (internal quotation marks omitted).

45. Id. at 403.

46. Id.

47. Id. at 404.

48. K. Issac deVyver, Comment, Opening the Door But Keeping the Lights Off: Kumho Tire Co. v. Carmichael and the Applicability of the Daubert Test to Nonscientific Evidence, 50 Case Wes. Res. L. Rev. 177, 199 (1999).

49. Douglas B. Maddock, Jr., Note, Federal Rules of Evidence: Raising the Bar on Admissibility of Expert Testimony: Can Your Expert Make the Grade After Kumho Tire Co. v. Carmichael?, 53 Okla. L. Rev. 507, 513 (2000) .

50. Erica Beecher-Monas, Blinded by Science: How Judges Avoid the Science in Scientific Evidence, 71 Temple L. Rev. 55, 82 n.186 (1998).

51. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

52. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

53. Guzman, 955 S.W.2d at 89.

54. Id. at 87; Stewart v. State, 44 S.W.3d 582, 586 (Tex. Crim. App. 2001).

55. Jackson, 17 S.W.3d at 672.

56. Kumho Tire Co., 526 U.S. at 152 (trial judge needs discretionary authority to avoid unnecessary reliability proceedings in ordinary cases where reliability of expert's methods is properly taken for granted).

57. Kelly, 824 S.W.2d at 573.

58. Daubert, 509 U.S. at 592 n.10.

59. Garcia, 3 P.3d at 1003(consider scientific literature outside record as part of de novo review); People v. Brown, 726 P.2d 516, 548 (Cal. 1985) (consider scientific literature outside record); People v. Wilds, 37 Cal. Rptr. 2d 351, 358 n.18 (Cal. Ct. App. 1995) (although appellate review is typically restricted to the record created at trial, limited de novo review of scientific theory permits the courts to consider scholarly treatises and journals which are not part of the trial record); Brim, 695 So. 2d at 274 (consider scientific literature outside record as part of de novo review); Harvey, 699 A.2d at 619-20 (same); State v. Gore, 21 P.3d 262, 271 (Wash. 2001) (same).

60. Faigman, supra note 44, at 1821.

61. Id.

62. Id.

63. Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 Sup. Ct. Rev. 75, 105 (1960).

64. Id. at 106.

65. 653 A.2d 307, 320-30 (D.C. App. 1995) (Ferren, J., concurring and dissenting).

66. Dean, 653 A.2d at 328 (Ferren, J., concurring and dissenting) (quoting State v. Erickson, 574 P.2d 1, 6 (Alaska 1978)).

67. Id.

68. Id. at 330 (internal citations omitted).

69. State v. Bible, 858 P.2d 1152, 1189 n.33 (Ariz. 1993); Harvey, 699 A.2d at 620; State v. Copeland, 922 P.2d 1304, 1312-13 (Wash. 1996). See also Hadden v. State, 690 So. 2d 573, 579 (Fla. 1997) (finding that an appellate court "should consider the issue of general acceptance at the time of appeal rather than at the time of trial").

70. Harvey, 699 A.2d at 620.

71. Bible, 858 P.2d at 1189 n.33.

72. Id. See also Erickson, 574 P.2d at 6-7.

73. 880 S.W.2d 759 (Tex. Crim. App. 1994).

74. Id. at 764-65.

75. 46 S.W.2d 902, 910 (Tex. Crim. App. 2001).

76. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (law of thermodynamics is theory properly subject to judicial notice); United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir. 1996) (DNA testing was reliable under Daubert and courts could take judicial notice of that); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 744 n.10 (3rd Cir. 1994) (if technique has uncontroverted validity, Daubert inquiry can be resolved by judicial notice); United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993), cert. denied, 510 U.S. 1062 (1994) (lower courts can take judicial notice of reliability and validity of scientific method, technique or theory); United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir. 1992) (judicial notice could be taken of general acceptability of general theory and use of the specific techniques of DNA profiling); United States v. Phillips, 53 M.J. 758 (2000) (trial courts could take judicial notice that microscopic hair analysis was reliable); Ex parte Taylor, 825 So.2d 769 (Ala. 2002) (judicial notice can be taken of reliability of theory or technique); Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (Ga. Ct. App. 1996) (trial court may take judicial notice of reliability of scientific technique or procedure once it has been recognized in substantial number of courts); State v. Ito, 90 Haw. 225, 978 P.2d 191 (Haw. Ct. App. 1999) (trial courts could take judicial notice of reliability of HGN tests); McGrew v. State, 682 N.E.2d 1289 (Ind. 1997) (courts can take judicial notice that scientific principles are reliable); Johnson v. Commonwealth, 12 S.W.3d 258, 263 (Ky. 1999) (trial courts could take judicial notice that microscopic hair analysis was reliable); State v. Taylor, 1997 ME 81, 694 A.2d 907 (Me. 1997) (appellate court took judicial notice of reliability of HGN test); Schultz v. State, 106 Md. App. 145, 664 A.2d 60 (Md. Ct. Spec. App. 1995) (appellate court took judicial notice of reliability of HGN test); State v. Bullard, 312 N.C. 129, 148, 322 S.E.2d 370, 381 (N.C. 1984) (courts can take judicial notice that scientific principles are reliable); State v. O'Key, 321 Ore. 285, 899 P.2d 663 (Or.1995) (validity of scientific evidence may be established by judicial notice); DiPetrillo v. Dow Chem. Co., 729 A.2d 677 (R.I. 1999)(judicial notice permitted of well-established scientific theories and methods); Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (W. Va. 1995) (court should take judicial notice of validity of scientific principles where appropriate). See also United States v. Ambriz-Vasquez, 34 Fed. Appx. 356 (9^th Cir. 2002) (unpublished) (trial court could take judicial notice of validity of fingerprinting analysis); Jean M. Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. Pitt. L. Rev. 889, 944 (1994) (discussing "very high degree of certainty" required to take judicial notice of scientific theory).

77. See footnote 4, supra.