Interrogations-and-Confessions-Handbook

The American Law on Confessions 295
the state courts of New York, California, Massachusetts and Florida. The Frye
test has been applied to a range of scientific evidence, including polygraph tests,
voice print analysis, fingerprint evidence, hypnosis, rape trauma syndrome and
psychological evidence related to witness perception and memory. Various criticisms
have been made of the Frye standard by courts and academics (Burke,
1995). These fall into four groups:
1. the Frye standard is thought to be unnecessarily restrictive of the reliable
evidence (i.e. scientific evidence may be reliable without being generally
accepted);
2. it is not clear who make up the ‘scientific community’ relied upon for general
acceptance (e.g. only those who use the technique or does it include related
fields?);
3. it is not clear how ‘general acceptance’ should be defined (e.g. does it mean
a simple minority of experts, a near universal acceptance among experts,
or somewhere in between?);
4. it is not clear whether the standard should be applied to ‘soft’ scientific
evidence, such as psychiatric and psychological evidence, in the same way
as ‘hard’ scientific evidence. Goodman-Delahunty (1997) argues that in the
past confusion has arisen when determining the admissibility of expert
psychological evidence, because psychology as a discipline displays a combination
of both physical (‘hard’) and social (‘soft’) sciences. A particular
difficulty has been expressed in relation to the evidence presented by clinical
psychologists. How far can such evidence be classified as ‘scientific’?
Views clearly differ on this point. In practice, trial courts often determine
‘general acceptance’ of a theory by how often it has been found admissible
by other courts.
Cases Evaluating Admissibility of Expert Testimony Under the
Frye Standard
Clearly, to get testimony admitted under the ‘general acceptance’ standard the
proponent must be well informed about the existing literature. This is illustrated
by a recent decision by a New York State trial court rejecting testimony
about interrogative suggestibility under the Frye standard, on the grounds that
the defendant ‘has not shown any specific scientific tests, recognized procedures
or findings’ to show reliability. 40 This finding could not have been based on accurate
information, since there is clearly an extensive body of literature detailing
reliable tests and findings on the subject. The Gudjonsson Suggestibility
Scales (GSSs) were rejected in a Massachusetts court, who found that the defence
had presented ‘no evidence’ as to whether it was accepted in the scientific
community. 41 Not surprisingly, a Florida court rejected the Grisso test when
the defence expert who based his findings on it told the court that it ‘was not a
commonly used, nationally recognized test’, and that it was ‘very unusual’ to use
40 People v. Philips, 180 Misc.2d 934 (N.Y. Sup.Ct. 1999).
41 Commonwealth v. Soares, 51 Mass.App.Ct. 273, 281 (App.Ct. Mass. 2001).