Expert Witness Requirement’s- The Frye and Daubert Test’s
CJ305-01: Legal Foundations of Criminal Evidence
Sigrid Hess
June 3, 2013
Expert Witness Requirements
This article will briefly review the applicable standards of the admission and exclusion of expert testimony in the Federal Court. The guidelines discussed in this article, principally pertain to the subject of the reliability of the methodology supporting the submitting of evidence. In addition, the qualifications of the proposed experts in the pertinent field of expertise, and the relevancy of evidence from expert’s .These areas also offer opportunities for confronting the opponent’s case by excluding the evidence on the grounds of; lack of expert qualification of the witness or the lack of relevance of the testimony to the facts of Court Cases. I. Discuss the Frye and Daubert tests
Frye Test:
Frye v. United States was a case in 1923 U.S. v. Frye, 54 App.D.C. 46, 293 F. 1013 C.A.D.C 1923. Retrieved from: Westlaw.com. , in which James Frye was tried for murder and in his defense he produced the testimony of an expert with the result of a blood pressure test, in the expectation to prove that he was speaking the truth when he did not accept his guilt. This deception test was intended to tell if a person is being dishonest or not. This case became a standard for judges while allowing admissibility of testimony of experts based upon scientific methods. Frye test is also referred to as Frye standard or general acceptance. This test pertains to the admissibility of expert’s testimony, with the help of scientific methods, many states in this country that adhere to Frye test still today.
Daubert Test:
It was in 1993, in the case between Daubert and Merryl Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 U.S.Cal.(1993). to which the Supreme Court gave a verdict that has changed the manner in which scientific testimony has been admitted till now. Retrieved from: Westlaw.com. Until this case came along, law courts in the United States accepted the Frye test but in this case, Frye was abandoned for the first time.
The Daubert test concentrates on the admissibility of the testimony of the expert and is based upon three major cases known as Daubert trilogy. Many States in the country have switched over to Daubert test, but there are still several States that continued with the Frye test. II. What is the difference between Daubert and Frye?
Frye test applied to admissibility of expert testimony based upon scientific method from 1923 till 1993 when it was superseded by Daubert test.
The Frye test concerns itself with the scientific knowledge only, whereas the Daubert test applies to technical and other specialized knowledge too. Both Frye and Daubert tests try to challenge the problem of misuse of expert testimony. Retrieved from: USLegal.com (2013)
In other words: Frye standard is a test to determine the admissibility of scientific evidence in United States Federal Courts, whereas Daubert standard is a rule of evidence. This regards to the admissibility of expert witnesses’ testimony during Federal legal proceedings. III. The factors to be weighed in those tests
The older Frye rule was that expert scientific testimony was to be admitted only when it had received general acceptance in the relevant scientific community. (Huber 1991). Frye was superseded by the new Rules point to Rule 702, to support their case. It provides that expert testimony is admissible “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact within an issue. If a witness is qualified as an expert by knowledge, skill, experience, training or education, such witness may testify thereto in the form of an opinion or otherwise. Retrieved from: Peter W. Huber, Junk Science in the Courtroom, 26 Val. U. L. Rev. 723 (1992).
Daubert replaced Frye by four factors:
Hypothesis testing: Hypothesis testing is the process of deriving some proposition (or hypothesis) about an observable group of events from accepted scientific principles, and then investigating whether, upon observation of data regarding that group of events, the hypothesis seems true.
The known or potential error rate: The second Daubert factor involves evaluating the scientific validity and reliability of "purported scientific testimony" which requires understanding the "known or potential rate of error" associated with using the particular scientific technique.
Peer review and publication: The third Daubert factor or criteria in determining whether expert testimony is admissible at trial is "whether the theory or technique has been subjected to peer review and publication.
General Acceptance: The fourth Daubert criterion or factor reflects the extent to which the expert’s methods produce information that qualifies as scientific knowledge. Retrieved from: Admissibility of Scientific evidence under Daubert. I. The advantages/disadvantages of each test.
Daubert requires an independent judicial assessment of reliability.
This test requires special pretrial hearings for scientific evidence and special procedures on discovery and it is a stricter test, which requires knowledge of error rates, as well as validity and reliability factors.
This is referred to as the "general acceptance" test by the scientific community.
1. Daubert requires a consideration of error rates, whereas Frye typically does not.
2. In Frye jurisdictions, the debate over; how to calculate the significance goes toward the admissibility of the evidence, whereas in Daubert jurisdictions, it goes toward the weight.
The Frye test refers to a standard for admitting scientific evidence at trial. It derives from a 1923 case, U.S. v. Frye, 54 App.D.C. 46, 293 F. 1013
C.A.D.C 1923. Retrieved from: Westlaw.com. It became known as the Frye general acceptance test and remained the standard used in both federal courts and state courts around the country for many years. It is also referred to as the Kelly/Frye test, due to a California case, People v. Kelly, 549 P.2d 1240 (Cal. 1976), in which the Supreme Court of California laid out what it felt were the main advantages of the Frye standards. Retrieved from: USLegal.com (2013).
The Frye test is essentially for the admittance of evidence for the results of a scientific technique to be admissible, the technique must be sufficiently established to have gained general acceptance in its particular field. IV. How does the attorney offering the expert testimony establish the foundational requirements?
Unless an attorney pays careful attention to; 1. The necessary steps to qualify an expert witness and his/her testimony for presentation to the jury. 2. By extracting the expert testimony in the most persuasive manner, or the entire testimony of an expert can be rendered useless.
Not only must an expert be qualified in the area in which he/she may be testifying; the methods and analysis used by the expert in coming to his/her conclusion must also pass a standard of acceptability and the opinion must be shown to be relevant to the matters at issue in the proceeding. Additionally, the entire manner in which the expert testifies could mean the difference between jurors either fixing their eyes on the expert in absorbed attention or merely express a small amount of interest or concern.
The foundation for qualifying an expert witness in federal court and before the experts’ testimony may be presented to the jury; the judge must make a preliminary determination of whether the testimony meets the requirements under the applicable evidence rule for expert testimony. Accordingly, the trial judge must assess the following procedure:
1. Whether the expert testimony is based upon sufficient facts and data,
2. Whether the expert testimony is the product of reliable principles and methods, and
3. Whether the expert witness has applied the principles and methods reliably to the facts of the case.
The determination, of the first issue, involves an evaluation by the trial judge to determine; if the facts are known to the expert, and pertain to the experts in this particular field. In determining the second issue, the judge must assess the principles and methodologies used by the expert to; whether the experts are accepted in the field, in which they claim to be skilled and the determination of how the expert witness has applied his/her principles and methods to the case.
Effective trial testimony by an expert requires careful preparation. Not only must the expert’s conclusions and analysis be clear; his/her presentation must be persuasive to the jury. The most knowledgeable and leading expert in a particular field could be a disaster at trial, if the jury does not believe him/her. Retrieved from: Federal Practice Manual for Legal Aid Attorneys – Expert Testimony (2010) V. Which test do you believe should be the controlling test, if you were the trial judge?
In my opinion, the Daubert test should be the controlling test. My opinion is based on the following factors.
As explained previously within this article: “The Federal Rules of Evidence (FRE) -Testimony by Expert Witnesses (Legal Information Institute), replaced the Frye test by loosening restrictions on expert testimony. FRE 702, which directs the admissibility of expert testimony, omitted the Frye test for the general acceptance, and instead specified that:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” FRE 702(1973). Retrieved from: Legal Information Institute- Cornell University of Law.
Therefore, it is my opinion, that the Daubert test, within its’ standards to relevance and reliability, would show itself as an effective method to determine the admissibility of expert testimony.
References:
Admissibility of Scientific evidence under Daubert. http://faculty.ncwc.edu/mstevens/425/lecture02.htm
Daubert and Merryl Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 U.S.Cal.(1993) http://campus.westlaw.com.lib.kaplan.edu/find/default.wl?cite=509+U.S.+579+(1993).+&rs=WLW13.04&vr=2.0&rp=%2ffind%2fdefault.wl&sp=004042837-2000&fn=_top&mt=CampusLaw&sv=Split Federal Practice Manual for Legal Aid Attorneys – Expert Testimony (2010) http://federalpracticemanual.org/node/38
U.S. v. Frye, 54 App.D.C. 46, 293 F. 1013 C.A.D.C (1923) http://campus.westlaw.com.lib.kaplan.edu/find/default.wl?cite=293+F.+1013+&rs=WLW13.04&vr=2.0&rp=%2ffind%2fdefault.wl&sp=004042837-2000&fn=_top&mt=CampusLaw&sv=Split Legal Information Institute- Cornell University of Law. http://www.law.cornell.edu/rules/fre/rule_702
Peter W. Huber, Junk Science in the Courtroom, 26 Val. U. L. Rev. 723 (1992). http://scholar.valpo.edu/cgi/viewcontent.cgi?article=2172&context=vulr
