Daubert Versus Frye: A National Look at Expert Evidentiary Standards

    As a general rule, it is up to the lawyers, not the experts, to determine what evidence must be presented in court to meet a specific jurisdiction’s admissibility standards.  That having been said, experts often want to know the requisite standard, as doing so allows them to better prepare for both direct and cross examination.  First, it’s best to understand the individual standards of Daubert and Frye.

    The Frye Standard

    The Frye Standard comes from a relatively brief opinion from 1923.[1]  The defendant, in that case, charged with second-degree murder, sought to introduce evidence he passed a “systolic blood pressure deception test.”  This was an early form of what is commonly referred to today as a lie detector test.  Specifically, the defendant sought to introduce testimony from the scientist who conducted the test, or, in the alternative, to perform the test in front of the jury.  Under either theory, the defense sought to introduce expert testimony on a matter beyond the common knowledge of the jury.

    The court held that 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 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.

    Thus, Frye is commonly referred to as the “general acceptance test.”  Scientific methods that are generally accepted are admissible, and scientific methods that are on the fringe, or not “sufficiently established” are not admissible.

    The Daubert Standard

    The Daubert Standard stems from a 1993 case, where petitioners asserted serious birth defects were the result of the mother’s prenatal use of Bendectin.[2]  The lower court dismissed the case on summary judgment, as petitioners had not established the premise Bendectin caused birth defects in humans met the “general acceptance in the scientific community” standard.  Instead, petitioners had only offered testimony about Bendectin causing birth defects based on chemical structure analyses, animal studies, and the reanalysis of previously published studies.

    The court reviewed the Frye Standard along with Federal Rule of Evidence 702, noting nothing in Rule 702 requires general acceptance as a precondition of admissibility.  Instead, the court noted, when scientific testimony is offered, the court must first make an assessment of whether the testimony is based on scientifically valid reasoning or methodology, and whether the testimony can be applied properly to the issue at hand.  The court provided guidance as to various considerations the trial court may review in determining admissibility, including:

    1. Whether a theory or technique can be and has been tested
    2. Whether the theory or technique has been subject to both peer review and publication
    3. The known or potential error rate of the method
    4. The existence and maintenance of standards controlling its operation
    5. Whether it has attracted widespread acceptance within the relevant scientific community

    Unlike the Frye standard, Daubert is a flexible standard.  Under Daubert, cross examination, the introduction of contrary evidence, and the court’s careful instruction regarding the burden of proof, rather than a bright-line rule of scientific consensus, allows juries to properly evaluate evidence.

    Practical Applications of Daubert and Frye

    Under Frye, the scientific community is essentially the gatekeeper determining evidence admissibility.  Using the strict standard, if the scientific community finds a method or theory acceptable, the court must admit the evidence.  Practically speaking, this means courts consider the issue once.  Upon a finding of general acceptance, admissibility isn’t revisited in subsequent cases.

    Under Daubert, the judge, not the scientific community, is the gatekeeper determining evidence admissibility.  Because the factors under Daubert can be reevaluated, and because things such as additional information on error rates or additional peer reviewed publication takes place, the court has an ever-changing landscape.  This allows for a case by case evaluation, rather than a single finding of admissibility, in theory.

    While Frye offers a bright line rule, Daubert provides courts with flexibility.  There is nothing that requires the court consider all the Daubert factors, or requires the court give more weight to one factor over other factors.  In other words, it is up to the court to decide, based on a wide variety of possible factors, including “widespread acceptance,” whether a certain scientific method or technique is admissible.

    In theory, Daubert admits evidence which courts may find reliable, yet not generally accepted, methodologies, and keeps out evidence which relies on a scientifically accepted method yet yields “bad science.”  Conversely, under Frye, new methods that produce “good science” are excluded if they have not yet reached the level of “general acceptance.”

    Practically speaking, however, there appears to be very little evidence the introduction of the more flexible Daubert Standard has had any impact on experts offered in state disputes.

    Federal Rule 702

    Under the Federal Rule of Evidence 702, persons qualified as experts based on “knowledge, skill, experience, training, or education” are permitted to offer expert opinion testimony if the following conditions have been met:

    1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
    2. the testimony is based on sufficient facts or data
    3. the testimony is the product of reliable principles and methods
    4. the expert has reliably applied the principles and methods to the facts of the case[3]
    5. The federal courts are all governed by Daubert

    State Rule 702

    Each state also has a Rule of Evidence defining the rules under which an expert can testify.  In most states, this rule is codified as Rule of Evidence 702.

    Some states apply Daubert.  Other states apply Frye.  Other states apply a modified Daubert or Frye Standard.  Still other states have their own standard of admissibility.  Finally, some states apply Daubert in some circumstances, and Frye in others.

    Below is a table of states and the admissibility standards for each.  Note, the law is ever-evolving, and even within the table below, we note potential areas of change currently on the horizon.

    State Rule of Evidence Standard
    Alabama Rule of Evidence 702 Daubert and Frye depending on circumstances
    Alaska Rule of Evidence 702 Daubert
    Arizona Rule of Evidence 702 Daubert
    Arkansas Rule of Evidence 702 Daubert
    California  California Evidence Code 702 Kelly / Frye
    Colorado Rule of Evidence 702 Shreck / Daubert
    Connecticut Code of Evidence 7-2 Porter / Daubert
    D.C. Motorola v. Murray Daubert
    Delaware Uniform Rule of Evidence 702 Daubert
    Florida Florida Statute § 90.702 Frye (despite “Daubert type language” in statute)[4]
    Georgia § 24 – 7 – 702 Daubert
    Hawaii Revised Statutes Annotated 702 Modified Daubert
    Idaho Rule of Evidence 702 Modified Daubert
    Illinois Rule of Evidence 702 Frye
    Indiana Rule of Evidence 702 Modified Daubert
    Iowa Rule of Evidence 5.702 Modified Daubert
    Kansas Kansas Statutes Annotated 60 – 456 (b) Daubert
    Kentucky Rule of Evidence 702 Daubert
    Louisiana Code of Evidence 702 Daubert
    Maine Rule of Evidence 702 Neither State v. Williams, 388 A.2d 500 (Me. 1978); Searles v. Fleetwood Homes of Pennsylvania, Inc., 878 A.2d 509 (Me. 2005) although more Daubert than Frye.
    Maryland Rule of Evidence 5 – 702 Daubert
    Massachusetts Rule of Evidence 702 Daubert
    Michigan Rule of Evidence 702 Daubert
    Minnesota Rule of Evidence 702 Modified Frye / Mack
    Mississippi Rule of Evidence 702 Daubert
    Missouri Missouri Revised Statute § 490.065 Daubert
    Montana Rule of Evidence 702 Daubert
    Nebraska Nebraska Revised Statute 27 – 702 Daubert
    Nevada Nevada Revised Statute 50.275 Modified Daubert
    New Hampshire Rule of Evidence 702 Daubert
    New Jersey Rule of Evidence 702 Daubert and Frye depending on case type[5]
    New Mexico Rule of Evidence 11 – 702 Specifically declines to modify Rule to incorporate the requirements of Daubert, but abandon Frye. Daubert/Alberico standard
    New York Civil Practice Law and Rules 4515 Frye
    North Carolina Rule of Evidence 702 Daubert
    North Dakota Rule of Evidence 702 Unique – Hernandez
    Ohio Rule of Evidence 702 Daubert
    Oklahoma Oklahoma Statute § 12 – 2702 Daubert
    Oregon Rule of Evidence 40.41 0 702 Modified Daubert / Brown
    Pennsylvania Rule of Evidence 702 Frye
    Rhode Island Rule of Evidence 702 Daubert
    South Carolina Rule of Evidence 702 Unique – Jones Standard
    South Dakota South Dakota Codified Law 19 – 19 – 702 Daubert
    Tennessee Rule of Evidence 702 Modified Daubert
    Texas Rule of Evidence 702 Modified Daubert
    Utah Rule of Evidence 702 Frye
    Vermont Rule of Evidence 702 Daubert
    Virginia Rule of Evidence 702 Modified Daubert
    Washington Rule of Evidence 702 Frye
    West Virginia Rule of Evidence 702 Daubert / Wilt Standard
    Wisconsin Wisconsin Statute § 907.02 Daubert
    Wyoming Rule of Evidence 702 Daubert

    While some states, such as Minnesota and Utah, specifically use the term “general acceptance” within their Rule of Evidence, other Frye states, such as Maryland and California, do not use Frye language, per se, within the rule governing testimony by experts.

    Whether a state applies Daubert or Frye, a combination or both, or a modification of one or the other, the duty of the expert remains the same.

    [1] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

    [2] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

    [3] Federal Rule of Evidence 702.

    [4] While Florida remains a Frye state as of this writing, Florida is a state to watch, as changes may be coming based on pending appeals.

    [5] As of this writing, an appeal is pending which may result in a new, different, or consistent rule.