The court summarized the case well:
Tracy Floren was convicted of murder in the first degree while armed with a firearm arising from the shooting death of his wife, Nancy. At trial, the prosecution argued that Floren had staged the scene to convince authorities that a burglar had killed Nancy. Consistent with this theory of the case, a bloodstain pattern analysis expert for the State testified that Nancy was already dead when the home’s security alarm was activated. Floren contends that the trial court erred by allowing this testimony without first conducting a Frye hearing.[1] However, because it cannot be reasonably disputed that both the underlying theory and the technique relied upon by the bloodstain pattern analysis expert are generally accepted in the relevant scientific community, a Frye hearing was not required in order to determine the admissibility of the expert’s testimony. Floren’s other contentions are similarly without merit. Accordingly, we affirm.
Blood Stain Pattern Evidence
The most complicated analysis in criminal law, in my mind, involves the analysis of forensic evidence. Considered by many the influential and prejudicial evidence, once admitted the scientific evidence dictates the outcome of any case. Still, many attorneys fail to understand the distinction between generally accepted scientific practices and admissibility under Evidence Rule 702. Although a complete analysis between the two scientific standards is too long for this short blog, a quick read of the unpublished case just released from Division I of the Court of Appeals may be helpful.
In Floren, the COA delineates the two standards and how they apply to the subject being analyzed. Floren reminds us that both the scientific theory and the technique or method used must be generally accepted in the relevant scientific community. The standard to show this is a preponderance of evidence and may be based on testimony or paper materials such as articles. Here, Florens argument was that the technique was novel. This argument failed and the court said that its an issue of ER 702 admissibility. Every deduction from a scientific technique need not satisfy the Frye standard. The “every deduction” type analysis or objection is more properly considered under ER 702.
Here is the final paragraph of analysis from the COA:
Viewed correctly, Floren’s contention that Gardner’s testimony went “far beyond what can be supported”[9] by the science of bloodstain pattern analysis implicates questions of weight and admissibility properly determined pursuant to other evidentiary requirements, not by application of the Frye standard. As our Supreme Court has recently explained, “Frye does not require every deduction drawn from generally accepted theories to be generally accepted. Other evidentiary requirements provide additional protections from deductions that are mere speculation.” Akzo, 260 P.3d at 866. For example, evidence must be probative, relevant, and not unduly prejudicial. ER 401, 402, 403. Moreover, evidence is further tested by the “adversarial process within the crucible of cross-examination.” Akzo, 260 P.3d at 864. Before expert opinion is admitted, ER 702 requires that the witness be qualified as an expert by knowledge, skill, experience, training or education and that the testimony be helpful to the trier of fact. Indeed, given the time-consuming, expensive nature of Frye hearings, “courts should analyze scientific evidence under ER 702 whenever possible.” Gregory, 158 Wn.2d at 830.
Rule of Floren – ER 702 is the proper objection to deductions not Frye.
State of Washington v. Tracy John Floren, Court of Appeals Division I, UNPUBLISHED OPINION, No. 64927-2-I, December 19, 2011