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Frye v. United States,
293 F. 1013, 1014 (D.C.Cir. 1923) held, in the context of a case
involving the admissibility of opinion evidence based upon use of a
precursor of the polygraph, that scientific evidence would be
admissible only after the thing from which the deduction is made had
been sufficiently established to have gained general acceptance in the
particular field in which it belongs.This decision was the birth of
what ultimately became known alternatively as the Frye test or the general acceptance test. While ignored initially by other courts, the Frye
test would, by the end of the 1990's, become the majority test for the
admissibility of novel scientific evidence. This was true in the
federal courts as well as in the states, despite the passage in 1975 of
Federal Rule of Evidence 702, which was believed by some courts to
embody a more flexible general relevance test for admissibility of
opinion testimony by expert witnesses.
In 1993, however, the United States Supreme Court handed down the very significant decision of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert,
the Court stated that evidence based on novel scientific knowledge
should be admissible only after it had been established that the
evidence was reliable and scientifically valid. Furthermore, the Court
cast upon the trial judges the duty to act as gatekeepers charged with
preventing junk science from entering the courtroom. In order to assist
the judges in fulfilling that role, Daubert discussed four
factors: testing, peer review, error rates, and acceptability in the
relevant scientific community. These four tests for reliability became
known as the Daubert factors.
In
1997, in General Electric v. Joiner, 522 U.S. 136 (1997), the Court
amplified its Daubert holding by adding that in reviewing the decision
of a trial court to either admit or deny admission of certain expert
testimony, whether on the issue of the judge's determination of
reliability/ unreliability, or on the ultimate conclusion reached by an
expert, a court of appeals must use an abuse-of-discretion standard.
In
the aftermath of Daubert, several issues remained unresolved and courts
reached differing conclusions on these questions. One uncertainty was
generated by the language used by the Court in defining scientific
knowledge and by identifying four specific factors by which reliability
of such knowledge was to be determined. The Court adopted a definition
of scientific knowledge that was drawn from the physical sciences, and
the Daubert factors, it was widely argued, were not suitable for many
other types of expert testimony that depended more on skill,
generalized knowledge and experience, technical prowess, or even on
applied science and/or clinical judgment. Another unresolved issue was
whether a Daubert inquiry would even be required at all when a court
was dealing with non-scientific expert opinion evidence, or when a
particular technique already had gained widespread judicial acceptance.
 On
March 23, 1999, the United States Supreme Court significantly enlarged
the Daubert holding in the case of Kumho Tire Co. v. Carmichael, No.
97-1709.
In Kumho Tire, the Court held that the Daubert factors Amay apply to the opinion testimony of non-scientist expert witnesses. The Kumho Tire
case was a diversity action against the maker and distributor of an
automobile tire. The tire had blown out, which caused the minivan on
which it was mounted to turn over. In the accident, one passenger died
and others were injured.
The
plaintiffs sought to make their case through the testimony of a tire
failure analyst who wanted to testify that a defect in the tire's
design or manufacture caused the blowout. The defendants sought to
exclude the expert's evidence on the ground that the methodology did
not satisfy Federal Rule of Evidence 702's requirements. The district
court, applying the Daubert factors, agreed with defendants and granted
the motion. It also entered summary judgment for defendants. While
there were some intermediate procedural steps, the case ultimately
reached the United States Supreme Court on the issue of whether Daubert
applied only to expert evidence that was based on scientific knowledge.
Without
equivocation, the Court held that the obligation imposed on trial
judges by Daubert to act as gatekeepers applies not only to scientific
testimony, but it applies to all expert opinion testimony. In order to
fulfill its gatekeeping responsibility, a court Amay use the factors
identified in Daubert IF they can be appropriately utilized to
determine reliability of either the underlying technique or the
expert's conclusions. But since Daubert clearly stipulated that the
inquiry it asks trial judges to undertake is a flexible one, the
gatekeeping function of necessity must be tied to the particular facts
of a case. Thus, the factors identified in Daubert are not supposed to
be talismanic, nor do they constitute a definitive checklist or litmus
test.
In
this newest decision, the Court continued to grant trial judges a broad
latitude of discretion. The Court permits trial judges to apply any and
all useful factors, whether identified in Daubert or elsewhere, that
will assist the tribunal in making a determination of reliability of
proffered evidence as deemed appropriate in the particular case.
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