In a previous series of articles for this magazine, I took the position that California really was a Daubert jurisdiction in the sense that Kelly and Frye and thenexisting case law required that the court be the “gatekeeper” and make a determination as to: 1) whether a science (or area of expertise) was a science (or area of expertise); 2) whether the witness was a scientist (or expert); 3) whether the data was reliable; and then, and only then, 4) what a true scientist (or expert) could say based on the science and based on the reliable data. In the April 2012 Criminal Justice column, I published a chart proposing that trial judges do a four stage analysis, with sub-questions, in order to rule on the admissibility of particular opinions.

In November of 2012, the California Supreme Court published its opinion in Sargon Enterprises v. University of Southern California, 55 Cal4th 747, 149 Cal. Rptr. 3d 614 (November 26, 2012). In Sargon, the Court decided that California would be a Daubert state. The Court expressly acknowledged, for the first time, that judges are the “gatekeepers” with regard to a Daubert analysis of scientific or expert testimony. The Court found three specific criteria of admissibility but, I will argue herein, in Parts I and II of this two-part series, that the court’s three criteria (and reference to “other provisions of law”) really encompass the four stages of the rule proposed here.

The Sargon concept of admissibility applies to civil as well as criminal cases. While most litigators and judges are, by now, familiar with Sargon, the general rules set forth in the decision still need to be implemented. The four stage rule and its sub-questions proposed in the April 2012 Santa Barbara Lawyer Magazine might assist trial judges, and counsel, in following Sargon’s dictates.