Case Could Widen DNA Admissibility : Courts: State justices hear a bid to broaden the latitude trial judges have over scientific evidence. Simpson trial could be affected.

In a case that could affect the admissibility of DNA evidence in the O.J. Simpson trial, the California Supreme Court began deliberating Tuesday whether to give trial judges greater flexibility to allow scientific evidence at trial.

The high court, hearing arguments in a Huntington Beach drunk driving case, has been asked by California Atty. Gen. Dan Lungren to broaden the state’s evidence rules to allow controversial DNA testing. Now, scientific evidence can be admitted if it is generally accepted by the scientific community.

Members of the court provided little insight into their thinking on the DNA issue, dwelling largely on questions about a common field sobriety test in which police officers check the eye movements of suspected drunk drivers.

The drunk driving case comes before the court on the heels of a U.S. Supreme Court decision adopting the broad standard advocated by Lungren that would give trial judges more discretion in the kinds of scientific evidence they admit.

But some prosecutors--as well as public defenders and corporate defense attorneys--worry that such a standard would open the door for all kinds of “junk science” that could be difficult for trial judges to sort out.

“There’s absolutely no need to put trial judges in the position of being scientists,” said Los Angeles County Deputy Dist. Atty. Brentford Ferreira, who joined Orange County prosecutors in arguing the Huntington Beach case before the Supreme Court.

The case before the court stems from the December, 1990, arrest of William Michael Leahy for allegedly speeding and driving under the influence of alcohol on Pacific Coast Highway.

According to evidence presented at his trial in Orange County Municipal Court, Leahy smelled of alcohol and spoke with a thick tongue when an officer pulled him over.

Leahy passed some sobriety tests administered by the arresting officer, including walking in a straight line and standing on one leg. But he failed a test called the horizontal gaze nystagmus test, in which an officer observes whether the eye moves smoothly as it tracks an object, such as a pencil, to the side.

A blood test 90 minutes later showed Leahy’s blood alcohol to be 0.1%, which exceeds the legal limit, but his attorney argued that the level rose after the arrest because of a drink the motorist consumed five minutes before he was arrested.

Leahy was found guilty at trial but his conviction was overturned by the state Court of Appeal in Santa Ana. That court held that the vision test is scientific evidence and, under California rules, cannot be admitted until a hearing is held to determine whether the procedure is generally accepted in the scientific community.

In agreeing to hear the case, the state Supreme Court asked attorneys to offer arguments on whether the new federal standard for scientific evidence--known as Daubert, after the U.S. Supreme Court case--should be adopted in place of the state standard.

In the Daubert case, the U.S. Supreme Court threw out the old standard of general acceptance by the scientific community and ruled that federal judges must only conclude whether scientific evidence is “relevant” and “reliable.”

Orange County Dist. Atty. Michael R. Cappizzi and Orange County Public Defender Ronald Butler argued that the state’s rules, known by the shorthand Kelly-Frye, should remain in place and attempted to focus the case on the field sobriety test.

“This is not a DNA case,” Deputy Public Defender Alan J. Crivaro told the court during oral arguments.

However, Lungren and the California District Attorneys Assn. filed amicus briefs with the court seeking adoption of the Daubert standard, which would be more likely to allow DNA evidence in criminal cases.

California appellate courts have issued mixed opinions on whether DNA tests are acceptable.

One recent appellate ruling rejected the use of DNA evidence because techniques used by laboratories to come up with statistical estimates are not generally accepted by the scientific community. The state Supreme Court let that decision stand.

With the murder trial of O.J. Simpson scheduled to start in less than three weeks, Superior Court Judge Lance A. Ito will be called on to decide whether DNA tests on blood found at the murder scene will be accepted into evidence.

The Supreme Court has 90 days to rule in Leahy’s case and any decision to broaden the rules for scientific evidence could come after Ito has ruled on the admissibility of the DNA tests, complicating appeals on the issue.

The state high court’s decision would be binding on state judges such as the one presiding over the Simpson case.

Admissibility of DNA evidence is crucial to the prosecution, which, lacking eyewitnesses, needs the testing to show that Simpson was at the scene of the crime.

Although not giving any indication whether they would tackle the DNA issue in their ruling in the Leahy case, some justices questioned the use of the 30-year-old field sobriety vision test as evidence in drunk driving cases without expert scientific testimony required under state standards.

“There seems to be a lot of science here,” said Justice Armand Arabian. “It might even be junk science. I guess that’s something we have to decide. . . . This is a test administered by an officer without the scientific community determining whether it’s worth a hill of beans.”