This paper examines the legal issues surrounding expert witnesses and the admissibility of scientific evidence in U.S. courts, with particular focus on the Frye general acceptance test. It traces the origins of the Frye rule from the 1923 District of Columbia Court of Appeals decision, explores its strengths and limitations — including its failure to address novel scientific evidence — and surveys the landmark Supreme Court trilogy of Daubert, Joiner, and Kumho Tire that refined or replaced it. The paper also considers scholarly critiques, including Professor Charles McCormick's challenge to the general acceptance standard, and discusses the evolving judicial responsibility to scrutinize expert testimony rather than defer entirely to the jury.
This essay examines the legal issues faced by expert witnesses and the impact the Frye test has on scientific evidence proffered at trial. It also covers the decisions reached by the courts concerning the fate of expert witnesses and expert testimony, as well as some of the legal issues that affect these cases.
Generally, every case involving technical or scientific issues, or professional standards, will require expert witnesses as well as expert testimony. There is non-uniformity in the rules that evolved and the required standards concerning expert testimony, because they vary based on jurisdiction. On a number of occasions, juries have been asked to decide between conflicting testimonies provided by two or more expert witnesses, with the court either failing to provide guidance or providing very little. As Judge Learned Hand observed more than a century ago: "How can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because juries are incompetent for such a task that the expert is necessary at all." An ever-growing debate existed in the latter half of the twentieth century regarding the standards that must be applied to expert testimony and the safeguards that must be put in place to prevent abuse.
From the outset, it is important to recognize that there are three general areas of expert evidence. The first is pure opinion expert evidence, the second is scientific expert evidence, and the third is non-scientific expert evidence (Gordon J. Beggs, 1995). The governing rules for admission may vary across each of these categories, both in terms of the standard for reviewing trial court decisions and the standards for admission. In every jurisdiction, there are differently formulated tests for the admission of each type of expert evidence, and it is important to identify carefully which rules apply in each jurisdiction.
On several occasions, courts have avoided the admissibility issue by indicating that a matter "goes to the weight, not the admissibility," and then permitting everything in. Recently, however, the trend has been for courts to scrutinize expert evidence more carefully, as was appropriately articulated by the Fifth Circuit Court of Appeals in In re Air Crash Disaster at New Orleans, Louisiana.
Basic policy questions affecting the very nature of trial lie behind decisions to receive expert testimony under the Federal Rules of Evidence. Experts are required both to explain the evidence and to identify its source. As the Fifth Circuit stated: "We recognize the temptation [on the part of the trial judge] to answer objections to receipt of expert testimony with the shorthand remark that the jury will give it 'the weight it deserves'.... Trial judges must be sensitive to the qualifications of persons claiming to be experts."
The court continued by acknowledging adherence to the deferential standard for review of decisions regarding the admission of expert testimony. Nonetheless, it cautioned that the standard has left appellate judges with a considerable task. They will apply a sharp eye to instances — which they hoped would be few — where it is evident from the record that the decision to receive expert testimony was merely tossed off to the jury under a philosophy of "let it all in." The message sent to trial courts was that it was time to take hold of expert testimony in federal trials. A similar warning is equally applicable to state courts.
Generally, the modern rules governing expert testimony in federal and state courts originated from the seminal case of Frye v. United States. The rule has been refined and, to a certain extent, replaced by what is known as "the expert evidence trilogy" (Paul C. Giannelli, 1980). The three landmark Supreme Court cases comprising that trilogy are: Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire Co., Ltd. v. Carmichael.
"Frye's strengths, weaknesses, and unanswered questions"
Paul C. Giannelli (1980). The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half Century Later. 80 Colum. L. Rev. 1197, 1232.
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