Academic journal article
By Oh, Peter B.
Defense Counsel Journal , Vol. 64, No. 4
A return to the general acceptance test of Frye would provide the best basis for courts to decide what nonscientific expert testimony should be heard
A former actor arranges to purchase marijuana. Over the next three years, he completes many transactions involving six persons and thousands of pounds of Colombian marijuana. He enjoys creating fictional plots, but he falls behind in his payments. After repeated and unsuccessful demands for money, the suppliers attempt to murder him. Before this plan can be implemented, however, federal agents arrest and charge all the individuals with conspiracy to import marijuana and operating a continuing criminal enterprise.
The former actor negotiates a deal with the government to testify as an expert on the marijuana's origin. Excusing the jury, the judge conducts a voir dire hearing. When asked to provide a qualifying basis for expertise, the former actor cites the "experience of being around a great deal and smoking" marijuana. The court admits him as an expert on identifying Colombian marijuana.(1)
This scenario is not an anomaly: nonscientific expert evidence is an increasingly common problem. A recent study concluded that approximately 40 percent of all expert witnesses introduced in civil trials decided by juries in California in 1985-86 were of the nonscientific variety.(2) That such evidence would become an integral part of the legal landscape was presciently foreseen by Dean Wigmore, who wrote that the introduction of expert knowledge in the courts "has done more than any one rule...to reduce our litigation to a state of legalized gambling."(3)
Since Wigmore's time, one enduring problem is that federal courts have had no established mechanism by which to deal with the growing influx of nonscientific expert knowledge. Until the enactment of the Federal Rules of Evidence in 1975, courts simply devised their own means for determining admissibility. Rule 702, "Testimony by Experts," states that "scientific, technical, or other specialized knowledge" is admissible only when shown that it "will assist the judge or jury in understanding or resolving a factual dispute." The evidence must be rendered by an individual qualified by virtue of "knowledge, skill, experience, training or education."
Although Rule 702 was an attempt to resolve the mess, its own ambiguities prevent federal courts from applying it in a consistent fashion. Courts have fashioned various common law standards to determine admissibility. These different standards demonstrate the need for harmony. In 1993, the U.S. Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals Inc.,(4) a case which involved expert evidence about an anti-nausea drug being a human teratogen, that Rule 702 supercedes the 1923 "general acceptance" test of Frye v. United States.(5) But Daubert was a failure in two respects. First, it applies only to scientific expert evidence, and thus provides no assistance in determining the admissibility of nonscientific expert evidence. Second, it retains the Frye test as one among many factors to be used in assessing the admissibility.
Since Daubert, some courts have maintained that Daubert's reasoning can be applied to nonscientific expertise. Others have interpreted Daubert as being inapplicable to nonscientific expertise and have relied on Rule 702 instead. There must be a more promising test than these alternatives. Courts should reconsider the Frye test as the best way to determine the admissibility of nonscientific expert testimony. The "general acceptance" test is more effective than the current alternatives.
ADMISSIBILITY TESTS BEFORE RULE 702
The earliest experts in American courts typically testified about technical matters by virtue of their experience and training, for example, as engineers, physicians and shipmasters. Although skeptical about the competence of such witnesses, the Supreme erected a loose admissibility standard in 1854 in The Schooner Catharine v. …