specially concurring:
I agree that defendant’s conviction and sentence of death should be affirmed. I write separately because I believe the majority has erred in its analysis of the trial court’s decision to admit the DNA evidence at defendant’s trial. Specifically, while the majority states that it is within the discretion of the trial court to determine that a novel scientific technique has gained general acceptance in the relevant scientific community as required for admissibility under the Frye standard (see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); People v. Thomas, 137 Ill. 2d 500, 517 (1990)), and that this determination will not be reversed absent an abuse of discretion (see People v. Eyler, 133 Ill. 2d 173, 212 (1989)), the majority has not, in fact, applied such a standard of review in the case at bar. The majority’s analysis is thus inherently contradictory, and can only serve to exacerbate the confusion in our appellate court regarding the proper standard of review to apply against trial court decisions admitting or excluding novel scientific evidence (compare People v. Heaton, 266 Ill. App. 3d 469, 476-78 (5th Dist. 1994) (trial court’s decision that novel scientific technique is generally accepted in the relevant scientific community is reviewed under traditional abuse of discretion standard), with People v. Watson, 257 Ill. App. 3d 915, 923-24 (1st Dist. 1994) ("broad review” may be applied to trial court’s determination regarding general acceptance of new scientific technique)).
An abuse of discretion occurs only where the trial court’s ruling is against the manifest weight of the evidence. Mizell v. Passo, 147 Ill. 2d 420, 425 (1992). By definition, then, a reviewing court may not conclude that a trial court has abused its discretion, or acted within that discretion, based on evidence that was never presented at trial. See Heaton, 266 Ill. App. 3d at 478 ("Under [the abuse of discretion standard], we must look at the state of the record as it existed in the trial court at the time the trial court made its determination”). However, that is exactly what the majority has done in the instant case. In its discussion regarding the admissibility of the DNA evidence, the majority cites to a recent scientific article and several court opinions from other jurisdictions. Both the article and the court opinions conclude that any lingering controversy surrounding the reliability of forensic DNA analysis has abated and, in particular, that the statistical techniques which were employed by the State’s expert witness in the case at bar are now generally accepted in the relevant scientific community. Neither the article nor the court opinions were part of the record before the trial court. 173 Ill. 2d at 184. Nevertheless, the majority concludes that "given the testimony the trial court had before it and the current level of acceptance of the RFLP process and the statistical analysis, the trial court did not abuse its discretion in allowing [the State’s expert] to. testify regarding the DNA evidence.” (Emphasis added.) 173 Ill. 2d at 190.
The majority cannot have it both ways. If trial court decisions concerning the general acceptance of novel scientific evidence cannot be reversed absent an abuse of discretion, then upon review, only material which was part of the trial record should be considered by this court. See Heaton, 266 Ill. App. 3d at 478. If, on the other hand, the majority believes that it is proper to rely on scientific articles and court cases which were not part of the trial record to determine whether a novel scientific technique has become generally accepted in the relevant scientific community, then the majority must acknowledge that the standard of review is not a simple abuse of discretion standard (see Watson, 257 Ill. App. 3d at 923-24).
I believe that the better approach is to recognize that this court may rely on materials which were not part of the trial record to determine whether a scientific technique is generally accepted in the relevant scientific community. In People v. Eyler, 133 Ill. 2d 173, 212 (1989), this court, sua sponte and without significant analysis, concluded that trial court decisions regarding the admission of novel scientific evidence should be reviewed for an abuse of discretion. I submit that the all-encompassing abuse of discretion standard adopted in Eyler does not permit a reviewing court to adequately address the legal issues raised by trial court applications of the Frye standard. What is needed instead is a mixed standard of review. Trial court decisions regarding whether an expert scientific witness is qualified to testify in a subject area, and whether the proffered testimony is relevant in a particular case, should be left to the sound discretion of the trial court. However, trial court decisions regarding the threshold question of whether a scientific technique has achieved general acceptance in the relevant scientific community should be subject to de novo review. This de novo review should not be limited to the trial record, but should permit the appellate court, where appropriate, to rely on sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions to determine the issue of general acceptance in the relevant scientific community.
There are good reasons why the determination of general acceptance in the scientific community should not be left to the discretion of the trial court. Foremost is the fact that the general acceptance issue transcends any particular dispute. As one court has put it, "[t]he question of general acceptance of a scientific technique, while referring to only one of the criteria for admissibility of expert testimony, in another sense transcends that particular inquiry, for, in attempting to establish such general acceptance for purposes of the case at hand, the proponent will also be asking the court to establish the law of the jurisdiction for future cases.” Jones v. United States, 548 A.2d 35, 40 (D.C. App. 1988). 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. Compare Heaton, 266 Ill. App. 3d 469, with Watson, 257 Ill. App. 3d 915. The general acceptance of a scientific technique does not change from one courtroom to another; assessments of that general acceptance also should not change from court to court. See Jones, 548 A.2d at 40 (and cases cited therein); Watson, 257 Ill. App. 3d at 923-24; State v. Vandebogart, 136 N.H. 365, 616 A.2d 483 (1992); Taylor v. State, 889 P.2d 319, 332 (Okla. Crim. App. 1995); see also Commonwealth v. Lanigan, 413 Mass. 154, 158, 596 N.E.2d 311, 314 (1992).
In addition, a de novo standard of review which permits reliance on materials outside the trial record is not, in this context, problematic. Under the Frye standard, the trial court is not asked to determine the validity of a particular scientific technique. Rather, the court’s responsibility is to determine the existence, or nonexistence, of general consensus in the relevant scientific community regarding the reliability of that technique. "Accordingly, because the focus is primarily on counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion, there will not be the concerns about witness credibility and hearsay normally associated with citations to empirical or scientific studies whose authors cannot be observed or cross-examined.” Jones, 548 A.2d at 42; see also Note, 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) (under the Frye standard, "the appellate court [can] take its own head count of experts and determine the extent to which a scientific method [is] accepted”).
Moreover, there is nothing particularly novel about the de novo standard of review proposed here. Indeed, in several previous decisions regarding the acceptance of scientific techniques, including Eyler itself, this court has engaged in precisely this type of review. See Eyler, 133 Ill. 2d at 213-15 (citing court decisions from other jurisdictions to support the conclusion that electrophoretic testing of dried blood is generally accepted in the scientific community); People v. Zayas, 131 Ill. 2d 284 (1989) (holding inadmissible hypnotically induced testimony of a witness other than the defendant and citing to scientific articles, law reviews and court opinions from other states); People v. Baynes, 88 Ill. 2d 225, 234-45 (1981) (citing law reviews, scientific articles and court decisions from other jurisdictions to support holding that polygraph evidence is inadmissible); People v. Keith, 148 Ill. 2d 32, 43-45 (1992). (suppressing results of bréatbi test and citing to a law review, a treatise and a court opinion from another jurisdiction, in discussion of the proper procedures for operating a breathalyzer). See also 2 K. Davis & R. Pierce, Administrative Law Treatise § 10.5 (3d ed. 1994) (describing the long tradition of courts relying on sources outside the record for "legislative” facts, i.e., facts that , help the tribunal decide questions of law and policy); New York v. Ferber, 458 U.S. 747, 758 n.9, 73 L. Ed. 2d 1113, 1123 n.9, 102 S. CL 3348, 3355 n.9 (1982) (citing literature describing the effect on children of being a subject in pornographic materials); People v. McCarty, 86 Ill. 2d 247, 255-57 (1981) (concluding that the legislature had a rational basis for statutorily classifying cocaine as a "narcotic” drug, based, in part, on a review of scientific literature).
Of course, when a reviewing court relies on materials which are not in the trial record — especially court opinions from other jurisdictions — to resolve the general acceptance question, care must be taken so that the practice is not abused. For "[ujnless the question of general acceptance has been thoroughly litigated in the previous cases, *** reliance on judicial practice is a hollow ritual.” 2 J. Strong, McCormick on Evidence § 203, at 870 n.20 (4th ed. 1992); see also State v. Cauthorn, 120 Wash. 2d 879, 888-89, 846 P.2d 502, 506 (1993) (decisions from other jurisdictions may be examined but relevant inquiry is the general acceptance by scientists, not by the courts). However, in the instant case, given the expert testimony of record and the clear consensus evident from the material cited by the majority (see 173 Ill. 2d at 188-89), I have no difficulty in concluding that the DNA techniques employed by the State’s expert are, in fact, generally accepted in the relevant scientific community.
Determining the appropriate standard of review for decisions regarding the admission of novel scientific evidence is more than an idle academic exercise. In certain cases, the standard of review may play a crucial, if not determinative role, in deciding the outcome of the case. See, e.g., Heaton, 266 Ill. App. 3d 469. While the majority’s decision today settles the ultimate question regarding the admissibility of DNA evidence, that result has unfortunately come at the expense of logic and clarity.