Venalonzo v. People

JUSTICE COATS,

concurring in the judgment.

¶54 Although I would also reverse the judgment of the court of appeals and the defendant’s sexual-assault-related convictions, I fundamentally disagree not only with the majority’s treatment of rules 608(a), 701, and 702 of the Colorado Rules of Evidence but, more generally, with its approach to ascribing meaning to those rules in the first place. Quite apart from the propriety of disregarding the texts of the individual rules *882themselves, I think the majority’s recasting of their more precise, in its own less precise and circular, terms can only create more problems in application than it could possibly solve. Moreover, I object to the majority’s analysis both because I believe it perpetuates (without meaningful reflection) questionable characterizations of these particular rules from our earliest attempts to apply the new evidentiary code, and because I believe it substantially misconceives the underlying purpose and design of the code’s treatment of opinion testimony. I therefore write to offer a counterview.

¶55 Initially, I fault the majority for failing to make any serious effort, or perhaps even recognize its obligation, to construe the pertinent language of the rules. Since 1980, the law of evidence in this jurisdiction has been governed by an integrated body of rules, adopted by this court, subject to the same principles of interpretation that govern our intei’pretation of statutes. While the majority at times refers to specific rules and purports to apply them, it largely ignores both their specific language and established canons of interpretation, in favor of conclusorily prescribing their meaning in terms it apparently finds more palatable.

¶56 Notwithstanding our having explicitly addressed, not fifteen years ago, the differences between testimony admissible as íay opinion, pursuant to CRE 701, and testimony admissible as expert opinion, pursuant to CRE 702, and our having identified the considerations that serve to bar the admission of expert opinion under the guise of lay opinion, see People v. Stewart, 55 P.3d 107, 121-124 (Colo. 2002), the majority finds the fact that our opinion in that ease did not address the testimony of “forensic interviewers” in particular to be sufficient justification for departing from our own precedent, in favor of adopting terms and distinctions made by a foreign jurisdiction, in reliance on its own prior case law. See maj. op. ¶ 21 (adopting the holding of State v. Gonzalez, 150 N.H. 74, 834 A.2d 354 (2003), which in turn adopted the reasoning of State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993), neither of which purports to rest its holding on the actual language of its own similar rule of evidence). And with regard to testimony touching upon the credibility of witnesses, while the majority purports to rely on our prior interpretations of CRE 608(a), I believe it draws the wrong lesson from those prior interpretations and effectively creates a broad and unworkable rule concerning “bolstering,” or vouching for the truthfulness of particular testimony.

¶57 Notwithstanding the majority’s suggestion that it is the nature of the witness in this case as a “forensic interviewer” that justifies its reconsideration of the difference between lay and expert opinion, it makes little attempt to relate opinion testimony generally to a forensic interviewer’s opinion focusing on witness credibility, treating them instead as alternate rationales for exclusion. Rather than approach these rules as an integrated scheme designed to present the fact finder only with evidence that is sufficiently probative of material issues and afford that fact finder some reasonable basis for evaluating the reliability of the evidence so presented, the majority approaches the various rules as if they were unrelated, segregating the testimonial evidence at issue into discrete units and considering each separately, without regard for their broader impact. While I can appreciate the need, given the ebb and flow of testimony and objections at trial, to articulate standards of admissibility in terms that can realistically be applied by ruling courts, I do not'believe trial courts are greatly aided in making what are necessarily interrelated and discretionary decisions concerning admissibility by providing them with a series of mechanical rules, lacking any controlling overarching design.

¶58 In fact, the scheme of the rules exhibits a distinct preference for testimony based on personal knowledge, and with some explicitly-articulated exceptions, like that for expert testimony, it is therefore designed to exclude testimony about matters of which the witness lacks personal knowledge. See CRE 602, 702, 703. Rather than attempt to rigidly limit non-expert witness testimony to bare descriptions of the witness’s first-hand sense impressions, however, the rules contemplate that, within circumscribed limits, witness testimony may take the form of opinions, or *883inferences,1 rationally derived from those perceptions. See CRE 701. Beyond testimony based on personal knowledge, a qualified expert witness is also permitted to testify to scientific, technical, or other specialized knowledge if doing so will assist the trier of fact, and such a qualified expert is permitted to present this testimony in the form of opinion or otherwise. CRE 702. But in the ease of expert opinion, as distinguished from lay opinion, the facts or data upon which the expert bases his opinion or inference need not have been perceived by the witness himself. Finally, and critical to the question of child witnesses at issue here, in addition to these other provisions addressing lay and expert opinion testimony generally, evidence in the form of opinion is expressly made admissible for the limited purpose of attacking or supporting the credibility of a witness to the extent that it refers to the character of the witness for truthfulness or untruthfulness, but even then, opinion evidence supporting truthfulness is admissible only after the character of the witness for truthfulness has been attacked. See CRE 608(a).

¶59 Perhaps because it does not focus on the actual language of the governing rules, the majority also fails to distinguish testimonial evidence generally from testimony given in the form of opinion, instead largely treating the terms “testimony” and “opinion” as interchangeable. Rule 701 clearly governs only the admissibility of opinion testimony that is not expert opinion; rule 702 governs the admissibility of all expert testimony, whether or not it takes the form of opinion; and rule 608(a) addresses the circumstances under which evidence in the form of opinion or reputation concerning the credibility of a witness will be permitted. The three rules intersect, or overlap, to the extent (but only to the extent) that they govern opinion testimony, as distinguished from testimony describing the witness’s perceptions themselves or, in the case of expert testimony, relating or applying acquired scientific, technical, or specialized knowledge. And to the extent that testimony attacking or supporting the credibility of a witness does not take the form of opinion or reputation evidence, it is not governed by rule 608(a) at all, whether the witness’s character for truthfulness has already been attacked or not.

¶60 Apart from methodological transgressions in reaching its holding, I find the majority’s new formula for distinguishing lay from expert testimony itself to be problematic for several reasons. Although it nominally asserts that classifying opinion testimony as either lay or expert according to the rules is dependent upon the actual basis for the opinion in question, the majority articulates its new formula for distinguishing one from the other in terms of what the testimony “could be expected to be based on” and what qualifications it “could not be offered without.” Maj. op. ¶ 16. In addition, this formula clearly conflates the qualifications required by CRE 702 of a witness to offer an expert opinion (“knowledge, skill, experience, training or éd-ucation,”) with the subject matter of the expert opinion itself (“scientific, technical, or other specialized'knowledge”). And to further complicate matters, the majority injects into the mix the undefined concept of an “ordinary person” — a term not found in either rule — giving its formula a distinctly circular quality. (Apparently “specialized knowledge” is knowledge that an “ordinary person” could not be expected to have and an “ordinary person” is one who could not be expected to have “specialized knowledge.”)

¶61 Because CRE 702 permits testimony as to scientific, technical, or other specialized knowledge and CRE 701 permits only opinion testimony that does not include opinions based on such knowledge, the difference between opinion testimony admissible under each rule must turn, at least in part, on the meaning of the phrase “scientific, technical, *884or other specialized knowledge.” In People v. Stewart, 55 P.3d at 123 & n.10, which was decided by this court on the very cusp of our amendment to CRE 701 following the corresponding federal amendment, we made clear that the 2000 federal amendment to Fed. R. Evid. 701, which added the words “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702,” merely clarified that expert and lay opinion were always intended to be mutually exclusive, precluding any overlap of the two from their inception. That being the case, we found that the trial court erred by permitting the officer in that case to testify as a lay person about his reconstruction of the crime scene because his deductions about such matters as the vehicle’s direction, position, and speed, despite being based in part on his perceptions and observation of the scene itself, were also based on his training and education. Id. at 124.

¶62 In addition to finding this amendment to rule 701 merely a clarification rather than a change, I believe we made clear in Stewart that an inference actually based on the witness’s training or education cannot be admitted without his qualification as an expert witness. Whether or not it could have been rationally based on the witness’s first-hand perceptions alone, without any formal training whatsoever, an opinion admittedly based on the witness’s training or education acquires additional weight by being cloaked in the mantle of expertise and, for that reason if none other, is admissible, if at all, only as expert opinion, pursuant to ORE 702. The majority perfunctorily dismisses the defendant’s objections to admission of the forensic interviewer’s qualifications on grounds that they were matters within her personal knowledge and were not sufficiently challenged as to relevance, and therefore it fails to acknowledge that testimony based on training is neither testimony of the witness’s own perceptions nor of inferences rationally based on his personal perceptions. Although I would find that the defendant adequately objected to admission of the forensic interviewer’s training and adequately preserved his objection in this court, I consider it misleading, regardless of the merits of this dispute over preservation, to suggest that admitting testimony about the training or education upon which a witness’s testimony is at least partially based is permissible without qualifying that witness as an expert.

¶63 In addition to admitting as lay opinion some testimony I believe' to be admissible only as expert testimony, I also believe the majority’s new formula would classify as expert some testimony I would consider to be admissible as lay opinion. In particular I believe the majority fails to distinguish experiences that an “ordinary person” would not have had from inferences that could not be rationally derived from those experiences without specialized knowledge, effectively requiring qualification as an expert to testify about the former rather than merely about the latter. While the question of relevance necessarily remains, as always, a central concern, relating one’s own experience is defini-tionally a matter within his personal knowledge, regardless of the uniqueness of that experience. An inference from personal experiences, however, necessarily becomes a matter of expert opinion if it can only be drawn with the aid of specialized knowledge. Thus, for example, recounting or summarizing a witness’s personal experiences with interviewing children is not itself a matter of specialized knowledge, but inferring something about the general population of children from the sample consisting of those actually interviewed by the witness is dearly a matter of specialized knowledge, requiring the application of principles of empirical mo-delling and inferential statistics.

¶64 As we have noted in the past, an expression of the result or meaning of a comparison or scientific test in terns of a frequency or likelihood of occurrence is itself a matter of expertise, separate and apart from the reliability or acceptance of the test or comparison it concerns, requiring an independent demonstration of its.reliability. See, e.g., People v. Wilkerson, 114 P.3d 874, 876-77 (Colo. 2005). Testimony about the typicality of particular occurrences in a witness’s personal experience, as distinguished from an opinion that the same frequency of occurrence would appear in the relevant population as a whole, have often been admitted as *885lay opinion. See generally 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7.3 (4th ed. 2013). Whether testimony of this nature would be sufficiently probative of a material issue to be admissible in any particular case, without expressing any opinion in terms implying an .expert conclusion about a broader population, however, must remain a matter of trial court discretion, just as with all other matters of relevance. The uniqueness of the witness’s experience does not, however, in and of itself, make testimony about it a matter of expertise.

¶65 For somewhat different reasons, I find the majority’s treatment of CRE 608(a), under the rubric of “Bolstering,” to be equally problematic. I understand the majority to hold that CRE 608(a) prohibits a witness from implying, either directly or indirectly, that someone else is telling the truth on a particular occasion; and that testimony by the forensic examiner and the mother of one of the victims — in the interviewer’s case, testimony that children who had been sexually assaulted commonly gave conflicting details and in the mother’s case, testimony that her daughter was not sophisticated enough to make up a story about sexual assault and had no reason to accuse the defendant— amounted to testimony that the child-witnesses were telling the truth. While I agree that testimony to the effect that a testifying witness personally believes someone else is telling the truth — in the sense that the witness believes that the other person made the statement in question without intending to deceive — is not admissible evidence in this jurisdiction, I do not agree that the admissibility of such testimony is governed by CRE 608(a), nor do I agree that the testimony in question should have been excluded as necessarily offered for this purpose.

¶66 Rule 608 expanded the long-accepted principle of evidence law permitting a witness’s character for truthfulness, that is, his character for veracity, or disposition for telling the truth rather than lying, to be attacked or supported with evidence of his reputation in the community, and it did so by permitting similar attack or support by opinion evidence.2 As the 2011 rewrite of the federal rule made crystal clear, Rule 608 was never intended to prohibit the admissibility of other evidence of credibility, but only to make admissible character evidence based on personal opinion, in the same manner as evidence of reputation.3 That this was the intended interpretation of the rule should have been apparent, if not sooner, at least by the time of the 2003 amendment to Fed. R. Evid. 608(b), pointedly replacing the word “credibility” with the phrase “character for truthfulness.”4 As the official comments to the rule made clear, the term “credibility” was considered too imprecise, as it could also be understood to limit attack on the basis of “bias, competency and contradiction impeachment since they too deal with credibility,” which was never the intent of the rule. Fed. R. Evid. 608 advisory committee’s note (2003). As the comment also made clear, “the Committee found it unnecessary to substitute ‘character for truthfulness’ for ‘credibility’ in Rule 608(a), because subdivision (a)(1) already served to limit impeachment to proof of such character.” Id.

¶67 Although we have held it error, at least since the adoption of the Colorado Rules of Evidence, to permit an expert witness to express an opinion on the question whether a child-victim was speaking the truth on a specific occasion, the scope and *886source of that proposition and its relation to CRE 608(a) and opinion evidence of “character for truthfulness” have always been somewhat unclear. At times, we. have indicated simply that such statements did not qualify for admission under CRE 608(a), see, e.g., People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989), and at others, that they were actually rendered inadmissible by CRE 608(a), see, e.g., Tevlin v. People, 716 P.2d 338, 341 (Colo. 1986) (relying on the court of appeals’ rationale in People v. Koon, 713 P.2d 410 (Colo. App. 1985)). At times, we have suggested that the only use for an expert opinion that the child was almost certainly telling the truth would be as support for his truthful character, see, e.g., People v. Snook, 745 P.2d 647, 649 (Colo. 1987), and at others, we have emphasized that even if the child’s character for truthfulness had already been attacked, CRE 608(a) would have merely permitted an expert opinion supporting his general character for truthfulness, but not an opinion that he was speaking the truth, see, e.g., Gaffney, 769 P.2d at 1088.

¶68 If not before, I believe that since the more recent amendments to both the federal and Colorado Rules 608, it is manifest that by “credibility” these rules refer solely to a person’s character for veracity, or disposition for lying; and that an opinion to the effect that another was speaking truthfully on a particular occasion does not amount to opinion evidence of his general character for truthfulness. While I believe the proposition that an expert witness is not permitted to testify that he believes another was speaking truthfully on a particular occasion is largely a valid proposition, I do not believe it can be attributed to CRE 608(a). Whether such opinions are not considered rationally infera-ble from personal knowledge at all, see CRE 701, not helpful to the jury, see id. not based on reliable science or expertise, see CRE 702; see also People v. Shreck, 22 P.3d 68, 77 (Colo. 2001), or simply not sufficiently probative in the balance against countervailing policy considerations, see CRE 403, we have long made clear that notwithstanding CRE 704, which permits opinions as to ultimate issues, “the rules were not intended to permit experts to ‘tell the jury what result to reach.’” Gaffney, 769 P.2d at 1087.

¶69 More problematic, however, than simply perpetuating this misconception about the scope of CRE 608 is the majority’s reliance on Snook for the broader proposition that the sole purpose for testifying that “children who had been sexually assaulted commonly gave conflicting details” was to “bolster the children’s credibility,” maj. op. ¶ 36, or in the words of Snook itself (quoted by the majority), “as support for the complainant’s truthful character,” 745 P.2d at 649. Unlike other cases in which we have simply found that opining about a child’s statements in terms that were effectively the same as, and would be understood by a jury as, opining that the child was speaking the truth, see, e.g., Gaffney, 769 P.2d at 1087-88 (child’s statements were “very believable”); People v. Eppens, 979 P.2d 14, 17-19 (Colo. 1999) (child’s statement was “sincere”), in Snook, this court appeared to extend that reasoning to find that an expert opinion that children tend not to fabricate amounted to both testimony that the child-victim was telling the truth oh a particular occasion and testimony that would be support for the child’s truthful character, see 745 P.2d at 649. It did so on the rationale that this was the sole use or purpose for such a statement, and in the absence of any prior attack on the victim’s character for truthfulness, it therefore found that admission of the statement violated CRE 608(a). See id.

¶70 Without challenging in any way the correctness of our finding in Snook that it was error to admit an expert opinion that children tend not to fabricate, the suggestion that such testimony amounts to an opinion that a person was speaking truthfully on a specific occasion or an opinion in support of his character for truthfulness, solely because it has that effect or is used for that purpose, can no longer be sustained. A belief that another person is speaking truthfully on a particular occasion is clearly not reputation or opinion evidence of that person’s character for truthfulness, as contemplated by CRE 608(a); does not offer support for such a disposition or character trait at all; and as we made clear barely a year later, is neither precluded, nor made admissible upon prior attack, by CRE 608(a). See Gaffney, 769 P.2d *887at 1088. As we also made clear in Gaffney, with numerous examples of admissible expert opinion, CRE 608(a) does not prohibit all statements that may tend to support the credibility of a person’s out-of-court statements or in-trial testimony. Id. at 1086.5

¶71 In perhaps our earliest interpretation of CRE 702 as permitting social science or so-called “syndrome” evidence,' without' demonstrating compliance with the Frye test,6 we found to be admissible expert testimony concerning Rape Trauma Syndrome, to the effect that a rape victim who knows her assailant is generally more reluctant to report the assault. See People v. Hampton, 746 P.2d 947 (Colo. 1987). In Hampton, we not only distinguished this opinion testimony from an opinion as to the truthfulness of the victim but found it admissible for the express purpose of demonstrating that the victim’s testimony w!as consistent with or — as we later said in Gaffney, 769 P.2d at 1087 — for the purpose of corroborating her testimony with respect to late reporting of the crime. Hampton, 746 P.2d at 951-52. Whether or not sufficient foundation could have been laid to admit as an expert opinion the forensic interviewer’s testimony in this case concerning conflicting details by child sexual-assault victims, I disagree that her testimony was barred for having been offered either as a personal belief that the witnesses were speaking the truth on this occasion or as support for their character for truthfulness.

¶72 In addition to finding no support in the Rules of Evidence, disallowing otherwise admissible opinion evidence on the ground that, despite not itself being an opinion about another person’s character for truthfulness or his intent to deceive, it would have the effect of, or was offered for the purpose of, supporting the truthfulness of a particular statement, is simply unworkable in practice. Virtually any evidence relevant to the commission of a crime can reasonably be characterized as ultimately supporting the testimony or out-of-court statement of another asserting that the crime occurred. As our holding in Hampton demonstrates, even testimony expressly offered as relevant solely on the question of lying by a purported sexual assault victim may be admissible.

¶73 No less than in Hampton, the forensic interviewer’s testimony in this case concerning the likelihood of conflicting detail in child-sexual-assault-victim statements can fairly be characterized as having been offered for the purpose of disputing what would be widely accepted as indicia of fabrication. Unlike the majority, I believe the *888admissibility of such testimony turns on whether it was admissible as expert testimony, under CRE 702, and if not, whether it amounted to testimony of personal knowledge, as required by CRE 602, or was admissible as a rational inference from personal knowledge, under CRE 701. It was clearly not an expression of personal belief that the child-victims in this case were speaking the truth in making their particular accusations, and I would not perpetuate the confusion that has obscured for many years in this jurisdiction the applicability of CRE 608(a) solely to opinion evidence of character for truthfulness.

¶74 For similar reasons, I do not believe the statements of one of the victims’ mothers were inadmissible for communicating her belief that her child was telling the truth. Her testimony to the effect that her child was not sophisticated enough to make up a story about sexual assault and that the child had no reason to do so was clearly not merely an expression of personal belief that her child was speaking the truth. On its face, this was an assessment of both her child’s capacity and lack of motive. Whether she could be qualified, based on her personal experience with her child alone, to offer an opinion about the extent of her child’s psychological development and awareness of sexual matters or the reasons why her child, in particular, might or might not be motivated to fabricate an accusation of sexual assault against a particular individual, are matters governed by CRE 701 and 702 — not CRE 608. Had it been possible to lay an adequate foundation for her to offer an opinion on these matters, that opinion would most certainly not have been barred by the fact that it might at one and the same time effectively communicate a belief that her child was telling the truth.

¶75 Unlike the majority, I would not perpetuate what is, at least by this point in time, a clear’ misreading of CRE 608, or saddle trial courts with the unenviable task of assessing whether testimony which, on its face, in no way expresses a personal belief about a witness’s intent to deceive is nevertheless offered with that as its real purpose. While we have consistently found science incapable of reliably determining whether someone is speaking the truth, see People v. Anderson, 637 P.2d 354 (Colo. 1981) (disallowing lie detector results), we have on a number of occasions found empirical evidence sufficiently reliable and helpful on the question of typical behavior patterns of sexual assault victims or the question whether traits ordinarily associated with fabrication nevertheless appear with regularity in accusations by individuals claiming to be sexual assault victims that ultimately prove to be accurate. The admissibility of testimony supporting the credibility of another in any manner other than providing opinion or reputation evidence of his character for truthfulness is governed by considerations outside CRE 608.

¶76 I would reverse the defendant’s sexual-assault-related convictions because the forensic interviewer’s conclusion about the typicality of conflict in the accusations of child-sexual-assault victims was based in part, even according to her own testimony, on her training and education, rather than simply her own observations. In addition, the mother’s assessment of her own daughter’s capacity and motive for fabricating lacked any foundation whatsoever, as either lay or expert opinion.

¶77 I therefore concur in the judgment of the court.

I am authorized to state that JUSTICE EID joins in this concurrence judgment.

. CRE 701 permits lay testimony in the form of "opinions and inferences,” while the text of the federal rule only provides for lay testimony in the form of “an opinion.” The federal rule previously permitted lay testimony in the form of "opinions or inferences,” but the 2011 federal amendments removed all references to the term "inference" in Rule 701 "on the grounds that the deletion made the Rule flow better and easier to read, and because any ‘inference’ is covered by the broader term 'opinion.'” Fed. R. Evid. 701 advisory committee's note (2011). Additionally, the advisory committee observed that "[c]ourts have not made substantive decisions on the basis of any distinction between an opinion and an inference.” Id.

. See Mueller & Kirkpatrick, supra § 6.30, at 174-76 (explaining that attacking a witness’s veracity through reputation testimony was proper under common law tradition and that Fed. R. Evid. 608(a) "sweeps away the artificial distinction between reputation and opinion, so a character witness may give his opinion that the principal witness is by disposition untruthful.”)

. Fed. R. Evid. 608(a) now provides that "[a] witness's credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character,” and the advisory committee expressly stated that the 2011 changes to Rule 608(a) were "intended to be stylistic only,” Fed. R. Evid. 608 advisory committee’s note (2011).

. This court followed suit by amending CRE 608(b) to replace "credibility” with "character for truthfulness" in an order dated September 29, 2005, which became effective January 1, 2006.

. This court in Gaffney observed that with respect to statements supporting the credibility of a child-victim’s out-of-court statements or in-trial testimony concerning a sexual crime:

CRE 702 ... states that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert may testify thereto in the form of opinion or otherwise. See, e.g.. United States v. St. Pierre, 812 F.2d 417 (8th Cir. 1987) (clinical psychologist's testimony as to certain traits and characteristics of sexually abused children as compared with those exhibited by child-victim was admissible); State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986) (in child molestation case, expert testimony that child-victim’s behavioral characteristics, including recantation of sexual abuse by father, matched characteristics of other child-victims of sexual abuse was admissible to assist jury in explaining strange behavior of child-victim, although expert testimony calculated to tell jury that expert believed victim’s earlier version of abuse was not admissible); People v. Koon, 724 P.2d 1367 (Colo.App. 1986) (expert testimony by police psychologist about specific behavioral patterns of child incest victim admissible where expert witness did not render opinion as to whether child was truthful in report of assault or was actual victim of incest); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983) (expert witness permitted to testify concerning the reaction of a typical child-victim of familial sex abuse and to offer opinion whether victim, who had been impeached by prior inconsistent statements, reacted in typical manner in making inconsistent statements); cf. People v. Hampton, 746 P.2d 947 (Colo. 1987) (expert testimony concerning rape trauma syndrome admissible in sexual assault prosecution to corroborate testimony of victim with respect to late reporting of crime).

Gaffney, 769 P.2d at 1086-87.

. Under the Frye test, expert scientific testimony may be admitted if "the thing from which the deduction is made [is] sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the U.S. Supreme Court held that the Frye test was superseded by Fed. R. Evid. 702.