Essay by Honorable Martin L. C. Feldman
In courtrooms across the United States, federal judges are increasingly being called on to determine the admissibility of scientific and other technical evidence. The principal focus is on new scientific issues and asserted risks. This is no easy task because in large part the judges are non-scientists, who are expected to sort through what is scientifically valid and what is not. Judges are trained lawyers and only rarely trained scientists, which explains their failure to provide coherent guidelines on how to accomplish this task. We, as participants in an adversarial process, have a desire for certainty, putting us at odds with scientific methodology, which feels less discomfort with uncertainty and changing assumptions.
The Frye test, established in 1923, has been “the prevailing test for the admissibility of nove or experimental scientific evidence” and other techniques for more than half a century. It anchors the admissibility of scientific evidence to “general acceptance of the scientific community.” However, despite the dominance of the Frye test, some circuits rejected its applicability. Hoping to resolve sharp divisions among the circuits regarding the admission of expert testimony in federal trials, the Supreme Court, on October 13, 1992, granted certiorari in Daubert v. Merrell Dow Pharmaceuticals. Daubert provided the Court an opportunity to decide how easy it should be for litigants to put evidence based on novel or experimental scientific techniques and theories before a jury. In light of conflicting appellate court rulings on just what expert testimony is admissible and the increase in high-stakes environmental and toxic tort litigation, Daubert had great national significance. Daubert could have determined how easy it would become for consumers to take on manufacturers and whether evolving techniques, such as DNA fingerprinting, could be introduced at criminal trials. The dilemma for the trial judge is how to separate the accurate, reliable testimony that aids the fact-finding process from the so-called “junk science” that contorts the fact-finding process. But whether Daubert does much to help is another challenge for the trial bench and bar.
I will endeavor first to speak about the current state of the law concerning the admissibility of scientific evidence in the wake of the Supreme Court's ruling in Daubert. To this end, I will briefly explain the genesis of the Frye test and highlight the split in the circuits that the Supreme Court sought to resolve when it took on Daubert. Finally, I will try to explain the Supreme Court's ruling in Daubert and discuss what effect, if any, that ruling might have on the continued application of the Frye test and one other well-known appellate court decision in force prior to the Daubert decision.
About the Author
Honorable Martin L. C. Feldman. United States District Judge, Eastern District of Louisiana. J.D. 1957, Tulane University.
Citation
69 Tul. L. Rev. 793 (1995)