Prosecutors and defense attorneys push along case narratives, but the use of expert testimony can actually shape case outcomes. An expert can support or break a case, but how does the court determine if an expert’s opinion is valid? Each jurisdiction has a baseline for deciding this.
The Frye and Daubert standards are two of the primary tests used to assess expert testimony in the United States. The Frye standard is based on general acceptance in the scientific community, while the Daubert considers factors that emphasize reliability and relevance. Attorneys, judges and witnesses need to understand these standards before they set foot in a courtroom.
What Is the Frye Standard?
The Frye standard originates from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In this case, a Washington, D.C. Circuit Court of Appeals ruled on whether a polygraph test was admissible as scientific evidence. The court established that expert testimony must be based on methods that have been “generally accepted” by the relevant scientific community. If the majority of the scientific area verifies the methods, the expert witness is allowed. Since polygraph tests are not supported by a majority of scientists as accurate, they are typically inadmissible in court.
The Frye standard makes submitting expert testimony straightforward for judges. It’s based on consensus — if a technique or principle is widely accepted in a given field, it’s admissible. Judges don’t need to understand the scientific methodology. They can rely on the majority opinion within that area to verify expert credibility.
However, this simplicity has led to several criticisms. The Frye standard became popular in the 1970s with the rise of more complex scientific evidence. It was initially used in criminal cases before expanding into civil litigation. Although it proved effective in the 1900s, the simplicity of “generally accepted” can be limiting. New but still accurate techniques may be ignored in expert testimony due to the lack of widespread recognition. This limitation is what led to the adoption of the Daubert standard.
What Is the Daubert Standard?
The Daubert standard emerged after Frye with the Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Supreme Court found the Frye decision inconsistent with federal evidentiary rules. Specifically, the Court established Rule 702, which allows experts to testify based on the reliability and relevance of their testimony.
The Daubert decision rejects Frye’s reliance on general acceptance. Instead, Daubert makes judges responsible for assessing evidence’s reliability and relevance. The Daubert standard gives courts greater discretion in determining whether they should admit expert testimony. Instead of relying solely on scientific consensus, Daubert establishes five standards for assessing expert witness’ validity:
- Testability: Can the theory or technique be tested?
- Peer review and publication: Has the method been reviewed in reputable scientific journals?
- Error rate: Does the technique have a known or potential error rate?
- Standards and controls: Are there established standards for using the method?
- General acceptance: Does the scientific community accept this technique as valid?
While general acceptance is considered, it’s no longer the only factor involved in admitting expert testimony.
Supporting Cases in the Daubert Standard
The Supreme Court expanded the Daubert standard in later rulings. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Court ruled that expert conclusions must be connected to the methods used. If judges find flaws in a testimony’s reasoning, they can reject it. Next, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) extended the Daubert ruling to all expert testimony. Judges must examine specialist knowledge, even outside of the scientific community, to see if it meets the Daubert standard.
Key Differences Between Frye and Daubert Standards
Both the Daubert and Frye standards have value. It’s important to set standards for expert testimony to keep cases relevant and accurate. While both standards work to create consistency, they have their differences. Both standards apply to expert witnesses, not fact witnesses who testify in court. Let’s compare and contrast the Daubert ruling and Frye standard to help legal professionals understand how they influence the courtroom.
1. Scope
The main difference between the Frye and Daubert standards is their scope. The criteria used to assess expert testimony is much more specific than the Daubert ruling. Frye uses one evaluation — is the technique “generally accepted” by the relevant scientific community? If experts widely endorse it, the testimony is admissible. Frye is straightforward but restrictive.
The Daubert standard sets up a framework for expert testimony analysis. Daubert goes beyond general acceptance, considering several criteria. It gives judges a clearer, more flexible scope for evaluating and admitting evidence.
2. Gatekeeping Role
With Frye, Judges have a limited role in evaluating expert testimony. The responsibility falls on the scientific community. If they accept the criteria, the evidence is admissible. Judges do not need to analyze the science themselves.
Daubert shares the responsibility between the scientific community and judges. Judges are now the gatekeepers of admission. While they take scientific consensus into account, judges are responsible for assessing the testimony’s reliability and relevance. They must review the scientific methodology to determine if the testimony is admissible. With Daubert, judges need to understand the science and broader case relevance, even if the technique is not widely accepted.
3. Flexibility
Frye is less flexible than Daubert. It tends to exclude emerging science that has yet to gain widespread acceptance. This rigidity can be a disadvantage in cases involving cutting-edge analysis or developing fields of study.
Daubert gives courts more flexibility. They can consider newer methodologies as long as they stand up to scientific scrutiny. Daubert encourages flexibility and innovation as long as techniques meet rigorous standards.
4. Focus
Daubert vs. Frye similarities end at general acceptance. The Frye standard focuses on community acceptance. As long as the relevant scientific field supports a method, it’s admissible.
Daubert’s focus shifts to reliability and methodology. Instead of basing acceptance on the community, judges evaluate expert testimony on set scientific principles. With a stronger framework, Daubert is preferred in federal courts for case-by-case evaluation.
What Courts Rely on the Frye Standard?
States can use the Frye standard in their courts. Several states follow Frye or similar standards established by state cases. As science evolves, states have debated transitioning to Daubert to align with federal courts. In 2020, Maryland decided to move from Frye to Daubert, while other states incorporated parts of Daubert while maintaining unique rules for court procedures.
After Daubert, federal courts now all use Rule 702 to determine admissibility. Rule 702 has seen amendments to create stronger evaluation criteria. Federal judges must evaluate testimony based on these standards before allowing expert admissibility. As states debate the Frye standard vs. Daubert standard, expert testimony must be tailored to each jurisdiction’s approach.
Acceptance in the Scientific Community
When debating Daubert vs. Frye’s similarities and differences, it’s important to consider the scientific community. Legal professionals must understand the nuances of each standard to effectively apply them in the courtroom without compromising the science.
Frye and “Generally Accepted”
General acceptance is a straightforward approach to expert testimony. It gives legal proceedings a more objective standard for testimony admission. If the majority of experts agree, testimony is deemed reliable. The Frye standard simplifies judicial decision-making — courts do not need to assess the science themselves. Instead, they rely on established professional consensus.
However, this straightforwardness has led to criticisms. General acceptance excludes the latest scientific innovations. New methodologies might be more accurate, but the community’s slow adoption of such techniques could make these methods inadmissible under Frye. Additionally, forensics is rife with errors in widely accepted methodologies. For example, latent fingerprinting is accepted by the relevant community, but 46% of examined wrongful conviction cases involving latent fingerprinting had errors. Many of these errors were caused by fraud or uncertified examiners. Consensus is not always the best measure of admissibility.
Daubert and Multi-Factor Evaluation
Daubert does not treat consensus as the sole criterion. Instead, it analyzes several factors. While peer review, empirical testing and error rates help judges admit scientifically sound evidence, it’s not without fault. Daubert attempts to raise the bar for expert testimony, forcing judges to look at the reliability of the science and experts rather than wide acceptance.
Daubert and Rule 702 strived to elevate expert testimony evaluation, but the standards are only as good as those applying them. In 2020, an assessment by the Judicial Conference’s Advisory Committee on the Federal Rules of Evidence found a lack of enforcement in Daubert courts. Courts might twist Rule 702 or ignore it when experts fail to meet its standards. Amendments to Rule 702 are attempting to limit these issues. The legal community, however, views these amendments as limited in their effectiveness.
Both Daubert and Frye have flaws in practice, but it’s essential for the legal community to work to uphold truth and accuracy in their proceedings. Established criteria for admissibility help courtrooms get closer to achieving these goals.
Is Daubert Stricter Than Frye?
The Frye and Daubert standards are often compared on strictness. When the Supreme Court first established Daubert, its multiple standards made it seem stricter than Frye’s. However, the actual strictness of both standards is still debated by the legal community.
At first glance, Daubert appears to be the stricter standard. It has more criteria than simply “generally accepted.” However, judges have less experience in the sciences than scientists. Some might argue that the scientific community’s acceptance is stricter than a judge’s evaluation of Daubert’s criteria. While Frye is less flexible, Daubert depends on judges’ understanding of scientific techniques and evaluation standards for admissibility.
Impact on Expert Testimony
A court’s use of the Frye test vs. Daubert test impacts how expert opinion is admitted. Everything from the types of evidence to the scrutiny witnesses face is influenced by the standard in effect. Whether you’re in a jurisdiction using Frye vs. Daubert, it’s critical to tailor expert testimony to the required practice.
Admissibility Rates
One of the major debates around Daubert vs. Frye is how it affects expert testimony admissibility. The ruling on Daubert was meant to establish more rigorous criteria for expert testimony. Concerns around “junk science” — unreliable methods — had grown. With Daubert’s multi-pronged standards, the legal community hoped to improve the credibility of expert testimony. On the one hand, this may limit expert admission. If previously accepted experts are shut out, that’s fewer expert witnesses on the stand. This could reduce the number of junk science evidence in a case, but it could also mean a higher exclusion rate of expert testimony, depending on the judge and their understanding of the science.
On the other hand, judges can now consider emerging scientific methods. That would allow more experts to testify. This flexibility could benefit innovations that use reliable but not widely accepted evidence. The truth is that both standards limit the kind of expert testimony on the stand. Daubert, however, allows for more challenges to expert testimony, potentially leading to a higher exclusion rate than Frye.
Examples of Application
The best area to examine the Daubert ruling vs. Frye standard is in case law. In Bielskis v. Louisville Ladder, Inc., No 10-1194 7th Cir. (2011), the Seventh Circuit Court found the expert’s methodology lacking in reliability. The expert failed to peer-review or test his theory, and the court ruled his testimony inadmissible under Daubert.
Other cases, like People v. Wesley, 83 N.Y.2d 417 (1994), predated Daubert standards. In this instance, a Frye hearing was held to determine if DNA evidence was admissible. The hearing found DNA to be viewed as reliable by the scientific community. Today, under Daubert, the DNA evidence would have had to undergo highly rigorous evaluations. It may not have held up to reliability concerns if Daubert had existed at the time.
Jurisdictional Awareness
Attorneys and expert witnesses must understand the standard by which their case is governed. State courts are still divided between Frye, Daubert and other standards. If you’re working in a Frye state, your experts must have testimony that is generally accepted by their field. In federal and state courts using Daubert, experts must be prepared to defend their methods against several criteria.
Ensure Your Expert Testimony Meets the Right Standard
Understanding the Daubert and Frye standards can mean the difference between winning and losing a case. Your legal team needs expert witnesses who can meet the standards of your court’s jurisdiction. You need experts with experience in the desired specialty who have a proven track record under Daubert and Frye.
At Intellex, we provide on-demand, qualified subject matter experts for consulting and litigation support. Our experts are rigorously vetted and bring years of specialized experience to your case. Contact us today to find the right expert witness for your case and strengthen your legal strategy.
