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. Dickinson, in which it permitted testimony on a vessel's value but recommended that only experts "whose occupations and experience enabled them to express opinions... upon which [a] court might rely with some confidence in making up its judgment" be allowed to testify.(6) This subjective test served as the standard for admissibility until Frye.
A. "General Acceptance" Test
Faced with an increasing influx of expert evidence, the D.C. Circuit attempted in Frye to establish a more rigorous and systematic admissibility standard. The defendant had attempted to introduce expert evidence concerning a systolic blood pressure deception test, a precursor to the modern polygraph test. The expert, who had conducted the test on the defendant, was offered as a witness either to testify about the results or to conduct another test before the court. The district court denied both of these offerings, and the defendant was convicted.
Affirming, the D.C. Circuit considered the deception test along two axes: probative function and prejudicial effect. Fearing that an inexperienced jury might impute an undue aura of reliability to a quasi-scientific test, however, the court chose to establish a standard designed to safeguard against prejudicial evidence. It ruled that such evidence "must be sufficiently established to have gained general acceptance in the particular field in which it belongs," thereby linking admissibility to credibility. The Frye test erected a threshold that required proposed expert evidence to be sufficiently recognizable by a court of law to be admissible.
B. Problems with "General Acceptance"
Although adopted by most federal courts, the Frye test was heavily criticized. Commentators attacked the test for failing to define what actually constitutes "general acceptance."(7) One manifestation of the test's ambiguity was its inconsistent application in federal courts.(8) Moreover, "general acceptance" was a stringent standard that could exclude novel, but nonetheless valid, expert knowledge.(9)
RECONCILING COMMON LAW ADMISSIBILITY TESTS WITH RULE 702
Since the emergence of the Frye test, there have been two significant developments with respect to admissibility standards for nonscientific expert evidence. First, the Federal Rules of Evidence were introduced in 1975, creating a new standard of "factual assistance" that conflicted with Frye. The resulting divergence among federal courts prompted the second development--the attempt by the Supreme Court to resolve the issue in Daubert. The Court, however, inadvertently created a multi-factor test that applies only to scientific expert evidence.
A. Rule 702
While Rules 703-705 also concern expert testimony, Rule 702 is the primary subject of controversy and the most relevant here. It provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or 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.
The rule requires a two-fold showing That (1) the proposed witness possess an acceptable degree of expertise on a "scientific," "technical" or "specialized" matter, and (2) the evidence will facilitate the resolution of a purely factual dispute.(10) It therefore does not explicitly recognize "general acceptance" as a means by which to determine admissibility.
The first element of Rule 702--its demand for credentials--is problematic. While it establishes the factors that a federal court must consider to assess a witness's expertise, it fails to provide a threshold standard for the factors, both individually and collectively. Much of the current confusion about what constitutes admissible nonscientific expertise is traceable to this provision.
The second element of Rule 702--its purpose--also is problematic. "Factual assistance" is a highly subjective determination of the trier of fact's capacity to benefit from the proffered evidence. For this very reason, some commentators propose more objective tests of whether expert knowledge is "beyond the ken of the average layman" or "not within the common knowledge of the average layman."(11) This task can be difficult in light of the diverse and wide pool of jurors in any particular case. Courts thus enjoy a significant degree of latitude under Rule 702 as to when expert evidence should be admitted or excluded.
Recognizing the tension between Rule 702 and Frye, the Supreme Court attempted to establish a definitive standard for assessing the admissibility of expert evidence. The majority, led by Justice Blackmun, concluded that under the Federal Rules of Evidence, no common law standard for determining admissibility remained. But the Court explicitly undermined its ruling by embracing reliability as the primary criterion for admitting expert evidence. That the Frye test was displaced by the Federal Rules does not mean, the Court held, that the rules themselves place no limits on the admissibility of "purportedly scientific evidence," retaining peer review as an important factor for determining the "general acceptance" of scientific evidence.
Although refusing to establish a "definitive checklist or test," the majority nevertheless suggested multiple factors that should be considered whenever scientific expertise is weighed for admissibility. Among these are: testability, peer review or publication, the known or potential rate of error, and widespread acceptance.
But this embrace of reliability was qualified. According to the majority, while "scientists typically distinguish between `validity' (does the principle support what it purports to show?) and `reliability' (does application of the principle produce consistent results?)," whenever there is case involving "scientific evidence, evidentiary reliability will be based on scientific validity." Daubert thus collapses the scientific standards of reliability and validity into a legal standard of "reliability."
In dissent, Chief Justice Rehnquist attacked the ruling's ambiguous scope and formless test, poignantly asking, "What is the difference between scientific and technical knowledge; does Rule 702 actually contemplate that the phrase `scientific, technical, or other specialized knowledge' broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language?" This question illustrates a significant tailing of the majority's opinion: its reliance on scientific principles, which restricts the decision from interpreting Rule 702 as to nonscientific expert knowledge.
Missing the thrust of this point, the response to the dissent was: "Our discussion is limited to the scientific context because that is the nature of the expertise offered [in this case]." Daubert thus provides no test for determining the admissibility of nonscientific expert evidence.
ADMISSIBILITY TESTS FOR NONSCIENTIFIC EXPERT EVIDENCE
Trial courts enjoy significant discretion in determining whether to admit or exclude expert evidence. One sign of this discretion is the various connections between different evidentiary rules. The possibility that potentially prejudicial and therefore excludable information, for instance, nevertheless may be admissible as impeachment evidence permits a judge to place greater weight on a case's particulars. Another sign is the esoteric level of knowledge that, by definition, accompanies expertise and can be used to disguise any extant personal biases. Accordingly, trial courts have a greater degree of responsibility to guard against confusing or slanted expert opinions.
These problems are compounded when nonscientific expert knowledge is involved. The fields that comprise such knowledge are numerous and diverse, and the factors used to evaluate the reliability of one field may not be applicable to another. A consequence of these complexities is that organizing a survey of expert admissibility rulings can be a difficult task. One commonly strategy is to examine the admissibility of one expert field across different circuits.(12)
In order to provide a more comprehensive survey of nonscientific expert knowledge, this strategy is not adopted in this article, which will evaluate federal admissibility rulings by the test applied. The choice of a particular test is a two-step process. First, a determination must be made as to whether the expert knowledge in question is scientific or nonscientific. Second, relevant considerations must be selected to assess admissibility.
Identifying the appropriate test is useful because it permits a comprehensive and systematic survey of current federal trends. As the type of expertise proffered does not influence the test applied, different fields can be analyzed as a collective group. As the test applied does not turn on a case's factual particulars, which can result in different admissibility rulings, circuit-wide trends can be gleaned.
Since Daubert, two primary types of tests have emerged for nonscientific expert evidence. First, despite its explicit limitation to scientific expertise, Daubert has been utilized by some courts as a source of guidance in how to apply Rule 702 to nonscientific expertise. Second, some courts have ruled that Daubert is inapplicable and have interpreted Rule 702's mandate of "factual assistance" in determining admissibility.
A. Applying Daubert
Daubert was limited to expert scientific evidence; no nonscientific equivalent exists, however. The response of numerous courts has been to try to fill this void by looking to Daubert for guidance. These attempts regard Daubert as requiring judges to guard vigilantly against questionable types of expert evidence. For some courts, Daubert's requirement of vigilance entails a determination of the proffered nonscientific expert evidence's validity and relevancy. Other courts, however, have concluded that, in addition to a validity and relevancy assessment, Daubert's suggested guidelines should be applied.
The cornerstones of the Daubert analysis are two-fold. First, the evidence must be reliable, and second, the proposed expertise must be relevant. These mandates are predicated on a concept of trial judges as "gatekeepers" whenever faced with the decision to admit or exclude. Courts that have assumed this role, however, differ as to the amount of responsibility entailed in the gatekeeping function. Some have adopted a concept of gatekeeping that conditions admission on a showing of the proffered expert evidence's scientific validity. Others have embraced a broader concept that conditions admission on a showing of both scientific validity and relevance.
At a minimum, however, courts that have adopted the gatekeeper role require admissible expert evidence to be scientifically valid. In Bowers v. Northern Telecom Inc., a district court cited gatekeeping as the basis for admitting an expert's testimony on the link between computer keyboards and "cumulative trauma disorders."(13) Gatekeeping, the court said, entails only a determination that the expert's reasoning or methodology be scientifically valid.
There are problems with this concept of gatekeeping. First, determining whether proffered expert evidence is "scientific" is a difficult task. Second, reliability is but one element of Rule 702. Evaluating scientific validity does not address the relevance of expert evidence.
As presciently observed by the Ninth Circuit on the remand of Daubert, federal judges are ill-equipped to identify the characteristics of "scientific" expertise. The court predicted that federal judges ruling on the admissibility of expert scientific testimony will "face a far more complex and daunting task in a post-Daubert world than before."(14) Indeed, determining what evidence constitutes "scientific knowledge," much less "good science," has proved to be a challenge. Recent seminars and the manual of the Federal Judicial Center on scientific methods and principles are some indicia that federal judges need assistance.(15)
Another problem with the concept of gatekeeping is that Daubert also requires a showing of relevance. The Fifth Circuit made this clear in Guillory v. Domtar Industries Inc., in which the trial court excluded expert evidence on a product's design. On appeal, the court interpreted Daubert as imposing two tasks in admissibility rulings: "(1) to ensure that an expert's testimony rests upon a reliable foundation, [and] (2) to ensure that all scientific testimony or evidence is reliable and relevant."(16) Applied to the case before it, the court concluded that the expert's opinions, although inspired by a reliable field, were too speculative to "speak to the case at hand and hence irrelevant." The gatekeeper role thus included relevance, but the Fifth Circuit in another case cautioned against expanding gatekeeping beyond the explicit dictates of Daubert.(17)
2. Extending Daubert to Nonscientific Expert Evidence
A few courts, however, not only have assumed the gatekeeping role but also grafted the Daubert suggested guidelines onto nonscientific expert-evidence. Some courts have interpreted Daubert's objectives as requiring a showing of sufficient peer review and general acceptance. Others have settled on a more moderate interpretation of Daubert's objectives as concerning only an expert's methods or principles. The common thread is a belief that expert knowledge must approximate scientific reliability to be admissible,(18)
As a way to measure reliability, some courts have adopted the Daubert guidelines of peer review and general acceptance. In Ohio v. Louis Trauth Diary Inc., a district court assessed the admissibility of expert economic testimony and held that although the testimony might not qualify as "scientific knowledge," the court concluded that the general framework of Daubert "applies to all expert testimony."(19)
In contrast, some courts have adopted an abstract reading of the Daubert mandate instead of its suggested guidelines. The Seventh Circuit looked to Daubert for guidance in Rosen v. Ciba-Geigy Corp.(20) to determine the admissibility of evidence on the risks of nicotine patches. Under this court's reading, trial judges have two tasks: (1) to ensure that experts are held to their professional standards and (2) to admit a proffered expert if these standards are satisfied, regardless of whether the methods used are generally accepted. While conceding the expert's credentials, the Rosen court disapproved the speculative basis of his opinions and excluded the testimony.
Applying either a strict or liberal interpretation of the Daubert guidelines, however, is a problematic way to assess questionable expertise. Scientific validity is a stringent standard that could exclude all but the most reliable types of expert evidence. As the Rosen court recognized, there are significant differences between scientific and nonscientific evidence. Indeed, the unilateral acceptance of a singular method and standard is a hallmark of the scientific fields.
To avoid such a restrictive standard, courts have only one other possible option with Daubert: undermine it by relaxing the test's scientific-specific standards for nonscientific expert evidence, which is typically more unreliable than its scientific counterpart.(21) Because it is unique to scientific fields, the process of hypothesis verification cannot be applied to social science or other nonscientific types of expertise. Accordingly, courts that respect these differences must lower the Daubert requirements to a level that more closely approximates those of Rule 702.
The 10th Circuit adopted a variant of this approach by strictly limiting Daubert to cases involving a principle or methodology. The defendants in Compton v. Subaru of America Inc.(22) unsuccessfully sought to exclude an expert on product design. As understood by the court, Daubert's explicit focus was "solely on principles and methodology, not on the conclusions they generate," and the court concluded that Daubert reach did not extend to cases where experience- or training-based knowledge is involved.
B. Applying Rule 702
For a few federal courts, the self-limitation of Daubert to scientific knowledge leaves only one test for nonscientific expertise--Rule 702. In a variety of contexts and jurisdictions, courts have cabined the use of Daubert and instead have applied Rule 702's admissibility test of "assisting the trier of fact".
The Southern District of New York, in United States v. Starzecpyzel,(23) has made the clearest statement of Daubert's restriction to the context of scientific expertise. To block the testimony of an expert forensic document examiner, the defendants advocated the application of the Daubert suggested guidelines, but the court concluded that there was "no support for the proposition that Daubert extends past the `scientific' branch of Rule 702 to other forms of expert testimony. In other words, Daubert does not impose any new standard, other than what is found in the text of the Federal Rules of Evidence, for the admissibility of nonscientific experts." The court relied on Rule 702, which requires only a showing of assistance to the trier of fact.
There are two primary problems with this admissibility standard.
First, "factual assistance" is an extremely low threshold requirement. That an expert presents specialized or technical knowledge useful to the trier of fact is essentially a tautological requirement, as Rule 702 defines experts by virtue of their specialized or technical background. In comparison, the Daubert suggested guidelines condition admission on a showing of the expert's reliability and the evidence's verifiability. Second, "factual assistance" does not require an inquiry into the evidence's reliability and soundness. A proffered witness whose field of expertise rests on sketchy grounds or whose reasoning is suspect nevertheless can testify. This is troubling because experts have incentives to shape their testimony to support their paying client. Without an inquiry into the substance of the testimony, reliance on "factual assistance" effectively gambles that the expert is valid.
Another problem with Rule 702 is that trial courts may compensate for the low threshold of "factual assistance" by placing undue emphasis on the expert's qualifications. In United States v. Locascio,(24) the prosecution sought to introduce an expert on the structure of crime families for the purpose of deciphering incriminating tape-recorded conversations. Following Rule 702's mandate that expert evidence be shown to assist the trier of fact and applying a manifestly erroneous standard of review, the Second Circuit found legitimate need for an explication of the crime family's organizational structure. Emphasizing that the value of expert knowledge hinges on the jury's presumed background in the field, the court concluded that jurors may be misinformed about criminal organizations. For these reasons, the expert's testimony was admitted.
More significant, however, was the court's emphasis on the expert's credentials. While conceding that the witness had never served as an expert in a court, the court remarked that even the most qualified expert must have his first day. Citing the expert's experiences as a Federal Bureau of Investigation agent, the court ruled that he possessed sufficient credentials to meet Rule 702's threshold.
This emphasis on credentials, however, is misdirected. Unlike assessing the methodologies and principles underlying a field, examining an individual's background provides no assurance that the expert will present valid views. Credentials alone do not establish a connection between the expert's knowledge and the particular factual dispute before the court.
Assessing credentials is a subjective determination. This judgment can be distorted by undue emphasis on the expert's accolades and positions, which may serve no other function but to impress the trier of fact. The standing possibility is that parties may seek to bolster weak cases with well-credentialed experts.
Recognizing these problems, the Standing Committee on Rules of Practice and Procedure of the Judicial Conference in 1991 floated amendments to Rule 702 proposed by the Advisory Committee on Civil Rules, which would have made the rule read:
Testimony providing scientific, technical,
or other specialized information in the form
of an opinion or otherwise, may be permitted
only if (1) the information is reasonably reliable
and will substantially assist the trier of
fact to understand the evidence or to determine
a fact in issue, and (2) the witness is
qualified as an expert by knowledge, skill,
experience, training, or education to provide
Most notably, the proposal suggested the addition of a "reasonable reliability" condition. This suggestion also has been made by the American College of Trial Lawyers.(26)
This proposed amendment, however, suffers from a fundamental problem, also noted by the ACTL: "What if there is no consensus within a particular nonscientific community as to its essential principles of knowledge?" The fields that comprise nonscientific knowledge are so varied that judges would be required to acquire sufficient proficiency in a wide range of expertise. The Ninth Circuit captured this predicament succinctly on the remand of Daubert when it pointed out that federal judges "are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing."(27)
THE PROPER STANDARD
Both Daubert and Rule 702 suffer from a common problem: the diversity of fields that comprise nonscientific knowledge. The problem with applying Daubert to such knowledge appears in two ways. First, there is no unilateral standard of reliability in and across all nonscientific fields. Second, methods or principles resistant to scientific methods nevertheless may be valid.
The problem with simply applying Rule 702 to nonscientific knowledge also appears in two ways. First, "factual assistance" erects a low threshold that permits the admission of even the most questionable knowledge. Second, to compensate for this permissiveness, trial judges sometimes place undue weight on an expert's credentials, which are no indicia of the evidence's accuracy.
The most viable solution to these concerns is to reinstate the general acceptance test of Frye for the purposes of nonscientific expert evidence.(28)
A. General Acceptance Test
Under Frye, a party seeking to introduce expert knowledge must demonstrate its "general acceptance." There are two components to this test. First, the trial court must be satisfied that the expert's conclusions represent an established view within the respective field. Second, the trial court must be satisfied that the expert's conclusions are sufficiently accurate to be reliable. Unlike the Daubert concept of gatekeeping and its suggested guidelines, both of which focus on the evidence's underlying methods and principles, "general acceptance" concerns the validity and reliability of the expert's conclusions.
The first step--validity of the expert's conclusions--is a contextual inquiry in that the trial court must determine whether the expert's conclusions comport with the field's predominant view. For the most part, this determination requires the proffering party to introduce the expert to present a survey of relevant scholarship. As in common law research, a nonscientific field's literature on a particular issue usually will overlap, from which certain consensus positions can be gleaned. These positions can be an effective source by which the trial court can sense the proffered expert evidence's standing.
The second step involves an assessment of the accuracy of the expert's conclusions. The disputing parties perform the bulk of this task. Constrained by time, no trier of fact can acquire the requisite knowledge to evaluate esoteric views competently and critically. Instead, under Frye, the disputing parties assume the responsibility of rebutting an opposing expert's conclusions with contradictory expert evidence. While divergent viewpoints can coexist within a particular field, the judge need only assess and weigh each party's arguments. The traditional division of responsibilities between courts and counsel is preserved.
B. Re-evaluating Criticisms of Frye
Until the introduction of the Federal Rules of Evidence, most courts applied Frye in spite of significant academic criticism.(29) It was charged that the standard of "general acceptance" was too ambiguous(30) and erected a high threshold that could exclude novel, but nonetheless valid, expert evidence.(31)
The alleged problem of ambiguity, however, more precisely refers to Frye's reliance on the standards embraced by the expert's field to determine what views are "generally accepted." To demonstrate the validity and accuracy of an expert's conclusion, the introducing party must present relevant, independent scholarship. As fields vary in their underlying conceptual premises, the respective experts will arrive at consensus viewpoints for different reasons. The Frye test accounts for these differences by subjecting the proffered expert conclusions to the professional standards embraced by the members of the field.
The alleged problem of an unnecessarily high threshold is perhaps accurate, but it is self-correcting. An instructive example is United States v. Addison,(32) in which the D.C. Circuit reviewed a decision admitting expert voiceprint evidence. At the time of the trial, voiceprint analysis was a novel technique. To assess the technique's admissibility, the court applied Frye. Examining studies on voiceprint analysis, the court also considered the testimony of a respected professor who had once opposed but had since suspended his stance on the technique. Arbitrating between these two viewpoints, the court turned to numerous articles from individuals other than the study's author and the professor, and it concluded that the literature of the field affirmed "that the scientific community has thus far failed to determine whether spectrographic analysis is a valid technique."
The next year, however, the Fourth Circuit explicitly disagreed with Addison. In United States v. Bailer,(33) the admissibility of voiceprint analysis was again the issue. The court reexamined the professor who had abandoned his early skepticism of such expertise for optimism. Citing recent evidence that this professor now supported admission of voiceprint analysis, the court admitted the proffered expert evidence.
Addison and Baller demonstrate that "general acceptance" can be sensitive to emerging evidence demonstrating a field's validity and accuracy.
C. Justifications for Reinstating Frye for Nonscientific Expert Evidence
Since Daubert, there has been significant debate over the proper admissibility test for nonscientific expert evidence. The predominant focus of this debate has been on Daubert's merits and effectiveness.(34) One prominent commentator, Professor Edward Imwinkelried, however, entertained but discarded the possibility of reinstating Frye to assess the admissibility of nonscientific expert evidence.(35) According to him, there are two reasons to support "general acceptance." First, evaluating the standing of the proffered expert's conclusions would stem the potentially prejudicial effects that experts can have on juries. Second, evaluating the accuracy of the proffered expert's conclusions would encourage competent testimony.
Questioning these reasons, Imwinkelried concludes that insufficient grounds warrant a shift to Frye. His criticism of the first reason supporting Frye is that no empirical evidence demonstrating that these prejudicial effects exists. His criticism of the second reason is that the litigating parties are usually vigilant about rebutting the introduction of an expert witness.
The first criticism, however, is merely an attempt to sidestep the well-known phenomenon of expert bias. In Sanchez v. The Black Bros. Co., for instance, one expert explained his technique for testifying to juries:
I want the jury to understand what I say
when I feel there are certain conditions. Under
direct examination, the jury understands
everything that I say. Under cross-examination,
there are some things that I will allow
the jury to understand and there are some
things that I will not allow the jury to understand.(36)
While this technique is not deployed by all experts, the predominant view among attorneys is that expert evidence can influence juries. A recent survey revealed that 43 percent acknowledged shopping for experts and 39 percent believed that experts would present evidence in favor of the retaining party.(37) Accordingly, parties may introduce highly credentialed experts for persuasive effect. More than adequate evidence of potential prejudice exists.
Frye's prong of validity mitigates the influence of these prejudices. An expert's credentials are relevant to "general acceptance" only as an indicium of competence. Under Frye, being qualified is not equivalent to being valid. Instead, a party seeking to introduce an expert must present supporting scholarship from the relevant field.
Imwinkelried's second criticism is actually one of the most attractive features of Frye. The very function of experts is to provide information that the trier of fact cannot acquire, either because of the subject's technical nature or the prohibitive cost of acquiring a competent level of knowledge. For the same reasons, trial judges are ill-equipped to evaluate the accuracy the proffered expert's conclusions. Instead, under Frye, the disputing parties bear the responsibility of presenting rebuttal evidence. To determine "general acceptance," the trial court need only perform its traditional task of examining and weighing conflicting evidence.
These advantages of Frye appear even more attractive when compared to Daubert's inadequacies. Beyond its explicit self-limitation to scientific knowledge, Daubert concerns only the expert's methods and principles. This focus is problematic whenever a party introduces nonscientific knowledge, which, by definition, consists of fields that do not adhere to a single methodological standard or set of principles. Furthermore, gatekeeping under Daubert requires that the judge, not the disputing parties, be vigilant against questionable types of expert evidence.
One possible counter-argument is that federal courts currently consider "general acceptance" while applying Daubert. Among the Supreme Court's suggested guidelines for assessing the admissibility of expert knowledge are peer review, as well as widespread acceptance. In this sense, Daubert incorporates Frye. If a distinction exists between these two tests, the counter-argument goes, it is that Daubert's guidelines permit a more flexible inquiry. Federal courts applying Daubert may admit a novel field if it is sufficiently reliable.
Although they may permit such a result, Daubert's suggested guidelines are predicated on reasoning ill-suited to nonscientific expert knowledge. The threshold for admission can be reliability only when it is conceptualized in a similar way by all fields. That Rule 702 explicitly refers to scientific, specialized and technical expert knowledge, however, evinces that significant distinctions exist between each category.
In contrast, "general acceptance" adopts the reliability standard used within the proffered expert's own field. To evaluate the validity and accuracy of the expert's conclusions, Frye requires trial courts to survey relevant scholarship. Admission is predicated on a showing that the expert's conclusions command an independent, supporting consensus. Under Frye, trial courts therefore assess expert evidence in its native context, a process that does not discriminate against different nonscientific fields.
Expert witnesses, both of the scientific and nonscientific variety, perform a valuable service for courts. The knowledge they convey to the trier of fact can play an integral role in clarifying or resolving a factual dispute. Although problematic, the use of experts should remain a feature of the legal landscape.
This article offers a different way to understand the growing body of cases involving nonscientific expertise by the admissibility test applied. Examining whether Rule 702, Daubert or another standard has been applied can be an effective way to approach the use of nonscientific expertise in the courts. There are distinct features to each admissibility test, and this article pro vides a partial explanation for the current confusion over how nonscientific expert evidence should be assessed.
The confusion and inherent problems surrounding each test, however, beckon for a new, single admissibility standard. Daubert's inapplicability to nonscientific knowledge and Rule 702's deficiencies militate against their use. Instead, federal courts should consider revisiting the merits of Frye's general acceptance test. Only by evaluating nonscientific expertise according to the relevant field's standards can federal courts make admissibility rulings in an effective and fair manner.
(1.) These facts are drawn from United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978), cert. denied, 440 U.S. 907 (1979).
(2.) Samuel Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1119.
(3.) 7A John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trial at Common Law [sections] 1929, at 39 (3d ed. 1978), hereinafter Wigmore.
(4.) 509 U.S. 579 (1993), vacating and remanding 951 F.2d 1128, which affirmed 727 F.Supp. 570 (S.D. Cal. 1989), on remand, 43 F.3d 1311 (9th Cir. 1995).
(5.) 293 F. 1013 (D.C. Cir. 1923).
(6.) 58 U.S. 170, 175 (1954).
(7.) See, e.g., Paul Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1219 (1980) [hereinafter Giannelli].
(8.) Compare, e.g., Standard Oil Co. of California v. Moore, 251 F.2d 188 (9th Cir. 1957) (court did not abuse discretion in admitting expert testimony on value of business); with Drayton v. Jiffee Chemical Corp., 591 F.2d 352, 364 (6th Cir. 1978) (modifying decision to receive and seriously consider expert testimony on future loss of income in which well outran any reasonable prediction).
(9.) See, e.g., Paul Tyler, Evidence, 22 Pepperdine L. Rev. 1274, 1275-76 (1995); United States v. Addison, 498 F.2d 741,743 (D.C. Cir. 1974) (Frye test retards admission of proof based on new methods of investigation by requiring that they attain sufficient currency and status to gain general acceptance).
(10.) See, e.g., De Luca v. Merrell Dow Pharmaceuticals Inc., 911 F.2d 941, 954 (3d Cir. 1990) ("Rule 702 authorizes the admission of expert testimony so long as it is rendered by a qualified expert and is helpful to the trier of fact."), citing Am. Technology Resources v. United States, 893 F.2d 651, 655 (3d Cir. 1990), cert. denied, 495 U.S. 933 (1991); Habecker v. Copperloy Corp., 893 F.2d 49, 51-53 (3d Cir. 1990); Briedor Sears, Roebuck & Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983), cert. denied, 114 S.Ct. 691 (1991).
(11.) See, e.g., 3 Jack Weinstein & Margaret Berger, Weinstein's Evidence [sections] 702(02), at 64-85; Wigmore, supra note 3, [sections] 1923, at 29; McCormick on Evidence [sections] 13, at 29 (Edward Cleary et al., eds., 2d ed. 1972).
(12.) See, e.g., Thomas Airone, Note, Hedonic Damages and the Admissibility of Expert Testimony in Connecticut after Daubert v. Merrell Dow Pharmaceuticals, 15 Q.L.R. 235 (1995); Robert Handberg, Expert Testimony on Eyewitness Identification: A New Pair of Glasses for the Jury, 32 Am. Crim. L. Rev. 1013 (1995); Christopher Hockett & Frank Hinman, Admissibility of Expert Testimony in Antitrust Cases: Does Daubert Raise a New Barrier of Entry for Economists? 10-Sum. Antitr. 40 (1996); James McCall, Misconceptions and Reevaluation--Polygraph Admissibility after Rock and Daubert, 1996 U. Ill. L. Rev. 363; Deon Nossel, Note, The Admissibility of Ultimate Issue Expert Testimony by Law Enforcement Officers in Criminal Trials, 93 Colum. L. Rev. 231 (1993); Jeremy Pasternak, Comment, Sexual Harassment and Expertise: The Admissibility of Expert Witness Testimony in Cases Utilizing the Reasonable Woman Standard, 35 Santa Clara L. Rev. 651 (1995); Myrna Raeder, The Double-Edged Sword: Admissibility of Battered Woman Syndrome by and Against Batterers in Cases Implicating Domestic Violence, 67 U. Colo. L. Rev. 789 (1996); and Jennifer Sparks, Comment, Admissibility of Expert Psychological Evidence in the Federal Courts, 27 Ariz.. ST. L.J. 1315 (1995).
(13.) 905 F.Supp. 1004, 1007 (N.D. Fla. 1995), citing Daubert. 509 U.S. at 589.
(14.) 43 F.3d 1311, 1315.
(15.) See, e.g., Margaret Berger, "Evidentiary Framework", in Reference Manual on Scientific Evidence 50 (Federal Judicial Center 1994) ("While courts are unlikely to undertake the inquiry envisioned by Daubert whenever scientific evidence is proffered, it is not yet clear when they must do so.")
(16.) 95 F.3d 1320, 1331 (5th Cir. 1996).
(17.) United States v. 14.38 Acres of Land, 80 F.3d 1074 (5th Cir. 1995) (gatekeeping not intended to serve as replacement for adversary system).
(18.) Tassin v Sears, Roebuck and Co., 946 F.Supp. 1241 (M.D. La. 1996).
(19.) 925 F.Supp, 1247, 1252 (S.D. Ohio 1996), citing Cook v. Am. S.S. Co., 53 F.3d 733, 738 (6th Cir. 1996) (applying Daubert to technical and specialized knowledge), and American College of Trial Lawyers, Standards and Procedures for Determining Admissibility of Expert Testimony after Daubert, 157 F.R.D. 571 (1994) (arguing Daubert should be used to analyze nonscientific expert knowledge) [hereinafter Standards and Procedures].
(20.) 78 F.3d 316 (7th Cir. 1996), cert. denied, 117 S.Ct. 73 (1996).
(21.) See, e.g., Michael Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643, 645 (1992).
(22.) 82 F.3d 1513 (10th Cir. 1996).
(23.) 880 F.Supp. 1027 (S.D.N.Y. 1995).
(24.) 6 F.3d 924 (2d Cir. 1993), cert. denied, 114 S.Ct. 1645 (1994).
(25.) Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, 137 F.R.D. 53, 156 (1991). This proposal was thoroughly attacked, although for reasons different than those argued here, in Jack Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631 (1991).
(26.) Standards and Procedures, supra note 19.
(27.) 43 F.3d at 1315.
(28.) An alternative would be the appointment by the court under Rule 706 of an expert in the field to assess the proffered expert witness's competence. This rule, however, is rarely utilized because of the expense and difficulty that accompanies the decision as to which expert should be appointed.
(29.) Daubert, 509 U.S. at 585, citing Eric Green & Charles Nesson, Problems, Cases and Materials on Evidence 649 (1983); and Paul Giannelli & Edward Imwinkelried, Scientific Evidence [sections] 1-5, at 10-14 (1986 and Supp. 1991).
(30.) See, e.g., Giannelli, supra note 7, at 1206-07; Lawrence Ebert, Comment, Frye after Daubert: The Role of Scientists in Admissibility Issues as Seen Through Analysis of the DNA Profiling Cases, 1993 U. Chi. L. Sch. Roundtable 219, 225 (1993).
(31.) See, e.g., McCormick on Evidence [sections] 203, at 363 (John William Strong ed., 4th ed. 1992) (noting that under Frye courts have excluded ion microprobe mass spectroscopy, infrared sensing of aircraft, retesting of breath samples for alcohol content, and blood group typing).
(32.) 498 F.2d 741 (D.C. Cir. 1974).
(33.) 519 F.2d 463 (4th Cir. 1975), cert. denied, 423 U.S. 1019 (1975).
(34.) See, e.g., Krista Duncan, Note, "Lies, Damned Lies, and Statistics"? Psychological Syndrome Evidence in the Courtroom after Daubert, 71 Ind. L.J. 753,754 (1996).
(35.) The Next Step after Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L. Rev. 2271 (1994).
(36.) 423 N.E.2d 1309, 1320 (Ill.App. 1981).
(37.) See, e.g., Gordon Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 Am. U. L. Rev. 1, 51-52 (1995).
Peter B. Oh is a 1997 graduate of the University of Chicago Law School, now an associate at Anderson Kill Olick in New York City. He is a 1994 graduate of Yale University, with a B.A. degree. This is a revised and condensed version of the paper with which he won first place in the 1997 IADC Legal Writing Contest.…