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FreeQuick bite 03.03.01 · Library 03 · Expert Witnesses

Sargon: reasoning, not credentials

Not California’s Daubert

Sargon (2012) 55 Cal.4th 747 · Kelly (1976) 17 Cal.3d 24 · Evid. Code §§ 801(b), 802

Sargon grounds gatekeeping in sections 801(b) and 802, not in Daubert. Footnote 6 expressly leaves Kelly standing for new scientific techniques.

THE FOUR QUESTIONS FEDERAL CALIFORNIA 1 Type of matter relied on Is it the sort an expert may rely on? FRE 703 § 801(b) 2 Reasons unsupported Does the material actually support them? Joiner § 802 THEY DIVERGE 3 Speculation A leap of logic or conjecture. Joiner § 802 THEY DIVERGE 4 New scientific technique General acceptance. A separate track. Daubert Kelly, 17 Cal.3d 24 THEY DIVERGE Two tracks, not a hierarchy. An opinion can fail one and pass the other.

Scroll the diagram sideways →

Plate 03.03.01 Footnote 6, and why it matters. Sargon records that Leahy held the Kelly general-acceptance test still applies in California despite Daubert, and adds: “Nothing we say in this case affects our holding in Leahy regarding new scientific techniques.”
§ Where the authority comes from
The questionFederalCalifornia
The source of the dutyWhat you cite.
Federal
FRE 702
The rule, as construed by Daubert, Joiner and Kumho
California
§§ 801(b), 802
The statutes. Federal cases are persuasive gloss, not authority
New scienceNovel technique.
Federal
702
Reliability under the Daubert factors
California
Kelly
General acceptance in the relevant scientific community. Frye survives here
Everything elseNon-novel expert opinion.
Federal
702
Same reliability inquiry
California
Sargon
Type of matter, unsupported reasons, speculation
In the courtroom
Say ‘Kelly’Leahy, 8 Cal.4th 587Not “Kelly-Frye.” Leahy decoupled California from Frye, which Daubert abrogated.
Two tracksKelly is not a substitute for a Sargon motion, and Sargon does not reach novelty of science.
Kelly in a civil caseRoberti (2003)It applies, but narrowly: novel techniques, not expert medical or psychological opinion.
Application

“Sargon is California’s Daubert” is the most repeated sentence in this subject and it is wrong in both directions. Sargon does not adopt Daubert; it grounds the gatekeeping duty in Evidence Code §§ 801(b) and 802 and cites the federal cases as persuasive reasoning. And it does not displace Kelly, which footnote 6 expressly preserves for new scientific techniques.

What follows is a two-track system. Kelly governs a genuinely novel scientific technique and asks about general acceptance. Sargon governs everything else: proper type of matter, reasons supported by it, and speculation. Kelly reaches civil cases, but Roberti confines it to novel techniques, not expert medical opinion. Filing the wrong motion is a wasted motion.

Framing it correctly

The motion“This is a section 802 motion. We are not asking the Court to weigh Dr. Adeyemi’s opinion against ours. We say the material she relies on does not support the reasons she gives.”

If they say Daubert“Daubert is not the California standard. Sargon rests on sections 801(b) and 802, and footnote 6 preserves Kelly for new science.”

Three traps
  • Calling it California’s Daubert.It changes which motion you file, and a judge who knows the difference will notice.
  • Writing ‘Kelly-Frye’ in 2026.Leahy decoupled them. The rule is Kelly.
  • Filing a Sargon motion about novel science.That is a Kelly motion, and it asks a different question.
Where to go deeper
NextThe three grounds for exclusion

Sargon in operative terms.

Quick bite 03.03.07What the court may not do

The limits on the same power.

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