Submitted by: Amanpreet Kaur

Historically, the concept of determining whether an

expert’s testimony is admissible or not dates back to

the Frye case. Frye v. United States, 293 F. 1013 (App.

D.C. Dec. 3, 1923)

This 1923 case stemmed from a Defendant’s appeal

who was convicted based on a precursor to the lie

detector.

The machine would measure changes in blood pressure

and the operator of the machine would correlate these

changes with the Defendant’s truthfulness.

The Defendant argued that this was an unfounded

technique which was not recognized by scientists in the

field.

The United States District Court for the District of

Columbia ruled that this test was not “generally

accepted” by the scientific community so the polygraph

results were not allowed into evidence.

In 1923, the scientific community would not have been

as broad as we would define the term “scientific

community” today.

Fields like psychiatry and forensics were not as popular

as they are now since they were just developing.

The “general acceptance test” establishes that the expert’s testimony must have acceptance of his/her peers in that particular field of expertise.

An example of this could be related to a medical malpractice case against a surgeon for negligent performance of a surgical procedure.

The Plaintiff would have to have an expert that was well versed in surgery, and, specifically, knowledge of the specific surgery that is at issue.

If the Plaintiff decided to use a pharmacist as an expert witness, the judge would exclude the testimony because the pharmacist does not have the experience and training of a surgeon.

If the Plaintiff uses a surgeon as an expert witness who wants to testify that the Defendant should have used a surgical procedure that no one, but the Plaintiff’s expert uses, the judge would exclude the testimony because the procedure is not generally accepted.

Essentially, 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.

This is referred to as the "general acceptance" test

by the scientific community.

• In 1975, the Federal Rules of Evidence (“FRE”) were passed.

Rule 702 outlines the basic principles of the Frye test and

introduces the concept of the judge having discretion to decide

what the jury hears in term of expert opinions.

• “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, if (1) the

testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods

reliably to the facts of the case.” Federal Rule of Evidence

702 (passed in 1975)

The Daubert case involves children and their parents who

were plaintiffs in a case involving alleged birth defects

which were caused by the mother’s ingestion of an anti-

nausea drug (Bendectin) which was manufactured and

marketed by Merrell Dow Pharmaceuticals.

The defense expert concluded that, based on his review of

multiple published studies, using Bendectin in the first

trimester of pregnancy was not a risk for birth defects.

The plaintiffs did not disagree with the defense expert but

rather countered with eight experts of their own who

concluded that Bendectin could cause birth defects with a

myriad of different types of testing and re-analysis of

previously published studies.

The trial court ruled that the Plaintiff’s experts’

evidence did not meet the general acceptance test for

admission.

As stated previously, the general acceptance test refers

to people in the specific field/career at issue who would

handle/view the situation similarly.

The Appeals court agreed, citing the Frye ruling in

their decision.

The Supreme Court reversed the decision, stating that

the Federal Rule of Evidence supersede the Frye test.

• The Supreme Court’s ruling on Daubert (Daubert v

Merrell Dow Pharmaceuticals, 293 U.S. 579 (1993)) is

crucial to the admissibility of expert testimony in that it

provides a detailed framework to help the judge when

determining the relevance and reliability upon hearing

evidence.

The Daubert standard (the detailed framework

previously referenced) is as follows:

Can the scientific theory/technique be tested or has it

been?

Have the test results been the subject of publication

and/or peer review?

Is there a known/potential rate of error?

What are the standards that control the operation of the

technique and how are they maintained?

Is it generally accepted within the scientific

community?

Once the Supreme Court ruled on the Daubert motion

in 1993, it caused mass confusion amongst the lower

courts who were inconsistently applying the ruling.

Some jurisdictions went so far as to say that Daubert

only applied to scientists and not engineers.

This was the first case regarding admissibility of

handwriting after the daubret rule were passed.

In this case the Jury charged the defendant’s with

conspiring to steal paintings, sculpture, silver and

gold jewellery from Ethel Brownstone,

Defendant’s aunt.

In this case two documents having signatures of

Ethel Brownstone was presented in court as

evidence.

When these signatures were compared by forensic

document examiners with the standard signatures

of Ethel, they were found to be forged.

But the judges decided that forensic examination

was practical rather than scientific so the Daubert

did not apply.

The expertise was admissible under rule 702 but

only as “ TECHNICAL SKILL”.

But the results of starzecypyzel indicated that an

expertise in forensic handwriting examination did

exist.

The case of Kumho Tire Co. Ltd. v Carmichael (526

U.S. 119 S.Ct. 1167 (1999) expands the rules of expert

testimony to:

include the testimony of those who have “technical”

knowledge, such as a doctor, architect, or engineer.

include the testimony of those who have “other

specialized” knowledge, such as the tire expert

testifying on behalf of the Plaintiffs in the Kumho case.

FRE 702 was amended in 2000 to reflect both the

Daubert and Kumho rulings

U.S court of appeals; Frye vs. U.S., 54 App. DC. 46,47,293F,1013,1014;1923

U.S Supreme court ruling; Daubert vs. MerellDow Pharmaceuticals, 509 U.S, 579;1993

U.S Supreme court ruling; U.S. vs. Starzecpyzel, 880F. Suppl 1027 (S.D.N.Y);1995

Howard Zonana: Daubert Vs. Merell Dow Pharmaceuticals: A new standard for scientific evidence in courts. ; Bull Am Academy Pschiatry law; 22(309-325);1994

Michael J. Saks and David L. Faigman: Expert

evidence after Daubert; Annual review Law

Soc. Sci.; 1(105-130)2005

Jan Seaman Kelly and Brian S. Lindblom:

Scientific examination of Questioned

Documents; 2nd edition; CRC press; (37-42);

2006