Many Courts Still Frye Scientific Evidence

David L. Faigman's Policy Forum “Is science different for lawyers?” (19 July, p. [339][1]) gives the impression that Daubert , the complex 1993 U.S. Supreme Court decision about science in the courtroom, is “the” standard for admissibility of scientific evidence in U.S. courts. It is not; a substantial number of courts favor an arguably simpler approach to the admission of scientific evidence ([1][2]). The courts of 17 states continue to apply the Frye “general acceptance” test from a 1923 ruling by a federal court ([2][3]). That court excluded expert testimony about a “blood pressure deception test” with a simplicity that contrasts to the multistep process of Daubert —admissible scientific evidence must be based on a “well-recognized scientific principle or discovery [that is] sufficiently established to have gained general acceptance in the particular field to which it belongs” ([2][3]). Thus, for a scientific theory or technique to be a basis for courtroom testimony in a Frye state trial, the presiding judge has to determine from expert testimony that the science has such general acceptance. And although Frye is used by a minority of states, many of these states are among the most populous and litigious jurisdictions. So while Daubert is the federal standard for scientific evidence, many trials are actually conducted in Frye jurisdictions under the general acceptance rule for scientific evidence. And, in contrast to the regard of Faigman for Daubert, many of the courts eschewing it in favor of Frye argue that Frye sets a higher standard against junk science, is more rigorous, and is easier to administer ([1][2]). Faigman's endorsement of the complex Daubert doctrine notwithstanding, he does further a compelling charge for scientists and their professional organizations—to assist courts by identifying impartial and expert scientists who can supplant the legal legionnaires who now provide dubious expert testimony about often friable scientific evidence in many U.S. courts ([3][4]). 1. [↵][5]1. E. J. Imwinkelried , Natl. Law J. 13 May 2002, p. B11. 2. [↵][6] Fryev. United States , 293 F. 1013 (D.C. Cir. 1923). 3. [↵][7]1. L. J. Deftos , Acad. Med. 74, 231 (1999). [OpenUrl][8][CrossRef][9][PubMed][10][Web of Science][11] # Many Courts Still Frye Scientific Evidence {#article-title-2} Deftos is correct that Daubert is not the only standard U.S. courts use when deciding the admissibility of expert testimony. I focused on Daubert because it provided the applicable rule in Judge Pollak's original decision that fingerprinting does not meet the Supreme Court standards of admissible scientific evidence and his subsequent reversal of that decision. The primary alternative to Daubert is what Deftos calls the “arguably simpler” Frye test, which is the very test Daubert replaced as the standard applied in the federal courts. Deftos is also correct that I “endorse” the “complex Daubert doctrine.” Deftos, however, is incorrect in characterizing Frye 's general acceptance test as being the primary rule of the most populous and litigious jurisdictions and in his view that it sets a higher standard and is easier to administer than Daubert . Most states today apply the Daubert standard or a similar form of validity and reliability assessment in which the judge is responsible for assessing the methodological strengths of proffered expert testimony. Although it is true that many large and populous states, such as New York, Florida, and California, persist in applying a Frye -styled general acceptance test, the reality is rather more complicated than Deftos implies. Florida and New York use large elements of Daubert in their Frye analyses, and California, going in the opposite direction, uses a Frye standard that excludes virtually no expert testimony at all ([1][2]). The more important issues concern whether Frye indeed provides a higher standard, and is thus a better guard against bad science, and whether Frye is easier to administer than Daubert . Both assertions are incorrect. Forensic sciences prove the error of the first claim. For instance, fingerprinting, handwriting identification, and bite marks all appear to easily meet the general acceptance test, and these techniques have passed muster under Frye from the start. Indeed, not until Daubert was the validity of these “specialties” questioned. The forensic science community is mainly a guild that furthers its members' interests but does virtually no empirical research. This is Frye 's Achilles' heel. The test is only as good as the fields surveyed. Unfortunately, in too many fields, the law relies upon a mistaken consensus for validity. Deftos also sees virtue in Frye 's ease of administration. Properly applied, however, the Frye test is no easier to administer than Daubert . The general acceptance standard actually should require a fairly sophisticated understanding of science. Judges must be able to define the pertinent field, and they must understand the vocabulary of science well enough to determine whether the expertise that is relevant to the law is what is accepted by the respective scientists surveyed. For instance, general acceptance of polygraphs obviously cannot depend on the views of polygraph operators any more than the general acceptance of astrology could depend on the views of astrologers. Moreover, government agencies might generally accept the polygraph because it is a highly useful tool of interrogation. This utility does not mean that courts should accept its validity. In the final analysis, both Frye and Daubert should work to the same end. Courts should be convinced of the validity and reliability of the basis for proffered expert testimony. To accomplish this task, courts should consider many factors, including how adequately the hypotheses of the expert have been tested, the likely error associated with admitting the expertise, whether the hypotheses have survived critical review by fellow scientists, and, as Frye suggested, the acceptance of the knowledge or technique in the pertinent field. Frye was not the wrong standard. It was just too simplistic. Science is not simple, and we fool ourselves looking for magic bullets to help courts deal with it without doing the work. Yes, Daubert is complex. Hopefully, it is complex enough to handle the complexities of expert evidence. 1. 1. D. L. Faigman, 2. D. H. Kaye, 3. M. J. Saks, 4. J. Sanders , Modern Scientific Evidence: The Law and Science of Expert Testimony, ed. 2 (West Group, St. Paul, MN, 2002) See, generally. 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