Standards For Testimony: Frye Vs Daubert

Standards For Expert Testimony: Frye Vs Daubert

It’s a scene out of almost every courtroom thriller – the expert witness takes the stand. Their credentials are introduced into the record, they are challenged by the other side, legal arguments ensue, tension builds as the judge readies to make a decision.

In the real world, the judge’s decision is governed by one of two standards, one that goes back to 1923, the other 1993. Which standard is applied is a matter of jurisdiction. What standards Frye and Daubert mandate – and why – is something that’s crucial to understand long before a matter goes to trial.

After all, if the court rules an expert’s testimony inadmissible - especially in the middle of a trial - it will have a catastrophic effect, the kind that sinks most cases. Luckily, we know what the standards are; unfortunately, standards for expert witness admissibility are not uniform in the United States. The States are torn between Daubert and Frye.

The Cases

The governing standards were established in two seminal cases — Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Federal courts all follow Daubert. State courts are divided between the two but tend to add their own interpretations. Simply put, the admissibility of expert testimony is variable between jurisdictions. It’s critical, then, to understand the difference between the Daubert and Frye standards, their specific jurisdictional variations, and any recent, applicable case law, prior to trial, ideally, prior to retaining your expert.

The Frye Standard: What it Means

The standard set in 1923 in Frye v. United States is deceivingly simple. It stated that an expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community.

In Frye, the Court refused to allow expert testimony concerning a lie detector test. The reason, one that still applies to lie detector tests, was that lie detectors had “not yet gained such standing and scientific recognition among physiological and psychological authorities.” This gave rise to the “general acceptance” test.

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

It took decades for the Frye standard to find a wide following. In the 1970s it was employed predominantly in criminal cases. It branched itself into civil cases – particularly toxic torts, in the 1980s. The more Frye was cited, the more criticism it incurred. Some critics noted that the ‘test’ was vague and could not reliably manage complex scientific testimony. Eventually, those criticisms led to Daubert.

The Daubert Standard: What to Consider

In Daubert v. Merrell, the Supreme Court effectively overruled Frye in federal courts. It ruled that Frye was ‘inconsistent’ with Rule 702 of the Federal Rules of Evidence. The Court held that the twin standards of Rule 702—relevance and reliability— were incompatible with the stricter “general acceptance” test.

While the new standard encouraged a more liberal approach to admitting expert testimony it also stressed the importance of subjecting a potential expert witness to vigorous cross-examination instead.

The Daubert admissibility standards for expert testimony were reinforced and somewhat expanded upon in another SCOTUS case in 1997 - General Electric Co. v. Joiner, 522 U.S. 136. There, the Court emphasized the importance of expert methodology instead of focusing solely on the conclusory opinion, finding that “conclusions and methodology are not entirely distinct from one another.”

The Court emphasized the importance of a trial judge’s “gatekeeping responsibility” when admitting expert testimony and listed several non-exhaustive factors to consider:

• Whether the expert’s technique or theory can be tested and assessed for reliability
• Whether the technique or theory has been subject to peer review and publication
• The known or potential rate of error of the technique or theory
• The existence and maintenance of standards and controls
• Whether the technique or theory has been generally accepted in the scientific community

Joiner’s lasting importance is that it also set forth the standard of review for appellate courts ruling on a district court’s expert testimony and evidentiary decisions. Joiner held that, “while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony that would have been admissible under Frye, they leave in place the gatekeeper role of the trial judge in screening such evidence.” The Court “rejected the notion propounded by several circuits that they should engage in a stringent review of decisions excluding scientific evidence proffered by plaintiffs in toxic tort and product liability cases.”

In a later ruling, the Supreme Court held that there was no relevant distinction between experts who rely on scientific principles and those who rely on “skill- or experienced-based observation,” stressing that Rule 702 of the Federal Rules of Evidence, “makes no distinction between scientific knowledge and technical or other specialized knowledge.

The Difference Between the Daubert and Frye Standards

Daubert’s standards are broader than Frye. While Frye essentially focuses the question – whether the expert’s opinion is generally accepted by the relevant scientific community – Daubert offers a list of factors to consider, factors that can lead to vigorous cross examination.

Frye arguably puts the admissibility of an expert witness’s methods in the hands of the expert’s own scientific community. Daubert puts the admissibility of an expert witness squarely on the judge while providing a guideline of factors to consider. It is telling that in Daubert, Chief Justice Rehnquist famously noted that the function does not impose on the court “the obligation or the authority to become amateur scientists.”

Missing in Daubert, however, is the amount of weight a judge should give to each Daubert factor or if one is more important than another. All that has been noted since 1997 in that regard is an aside Justice Scalia made in another case, “Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.”

Daubert is the standard in every federal court. Frye is the standard in approximately eight states – we write ‘approximately' because state legislatures have been known to change the standard. The states that have adopted Daubert have usually done so while adding their own interpretation to the standard. A state-to-state knowledge of those interpretations is crucial.

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The right forensic expert knows the difference between Frye and Daubert and the standards and practices of each state court system. McDowell Owens is the right firm. McDowell Owens’ team of highly credentialed, on-point experts has a proven track record of success helping lay audiences understand the value and strength of our findings.

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