B. New York's Frye Test for Novel Scientific or Other Expert Evidence

• Jurisdiction: New York

B. New York's Frye Test for Novel Scientific or Other Expert Evidence

In New York state court, under the Frye test, the trial court first determines whether novel scientific evidence is reliable enough to be admitted.¹⁵³² The proposed expert testimony must rest on principles or procedures generally accepted in the specified field.¹⁵³³ A court must exclude the testimony or subject without such general acceptance.¹⁵³⁴ The Frye test emphasizes counting scientists' votes, rather than on verifying the soundness of a scientific conclusion.¹⁵³⁵ The Frye test applies only to novel scientific evidence.¹⁵³⁶ Expert opinion alone may support a favorable ruling on general acceptance.¹⁵³⁷

Under the Frye test, the court also considers whether the expert employed the appropriate technique to arrive at the final result, and whether defects in evidence collection or analysis affected the reliability of that result.¹⁵³⁸ Failing to meet any prong of the Frye test can be fatal.¹⁵³⁹

The Frye test is very much alive in New York.¹⁵⁴⁰ It has grounded reversals of multi-million-dollar verdicts,¹⁵⁴¹ and pretrial and trial orders dismissing actions.¹⁵⁴² In the appropriate case, you must prepare your experts and your theory of the case for a Frye challenge. Do not, however, forget New York's traditional evidentiary hurdles for expert testimony. The courts have noted the difference between a Frye analysis and the issue of whether an expert has a proper foundation for an opinion and whether the expert was qualified to render such an opinion.¹⁵⁴³

A Frye hearing is not necessary in every case.¹⁵⁴⁴ Simply because defendants find the expert affidavits conclusory does not mean that the expert's opinions are not generally accepted in the scientific community. The jury resolves differences of opinions between experts, not the court on a Frye motion.¹⁵⁴⁵

A motion court's pre-trial ruling denying a request for Frye preclusion, and for a Frye hearing, could not foreclose the movant from re-raising the issues before the trial court.¹⁵⁴⁶ A trial court is always empowered to decide whether an expert has the qualifications to testify, or whether his opinions rest on a proper foundation.¹⁵⁴⁷

There is no bright-line standard on whether a court will hold a Frye hearing. The party seeking a Frye hearing has the burden of justifying the need for it by showing that the opponent is attempting to submit novel scientific, technical or medical evidence.¹⁵⁴⁸ Courts decide this on a case-by-case basis.¹⁵⁴⁹ An attorney's affirmation by itself cannot meet this burden for the movant.¹⁵⁵⁰ If, however, the movant does meet this threshold, the burden shifts to the proponent of the evidence to establish general reliance.¹⁵⁵¹

One thing is clear—courts do not like Frye motions on the eve of trial, particularly with a jury picked.¹⁵⁵² It seems reasonable to infer that the chances of getting a Frye hearing diminish on the eve of trial due to the prejudicial impact on the orderly progression of the trial.

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Notes:

^[1532] People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97 (1994) (plurality opinion per Smith, J.); see generally Frye v. United States, 293 F. 1013 (1923).

^[1533] Wesley, 83 N.Y.2d at 423.

^[1534] Castrichini v. Rivera, 175 Misc. 2d 530, 535, 669 N.Y.S.2d 140 (Sup. Ct., Monroe Co. 1997).

^[1535] Wesley, 83 N.Y.2d at 439 (Kaye, Ch. J., concurring) (quoting Jones v. United States, 548 A.2d 35, 42 (D.C. 1988)).

^[1536] See Wahl v. Am. Honda Motor Co., 181 Misc. 2d 396, 398–99, 693 N.Y.S.2d 875 (Sup. Ct., Suffolk Co. 1999).

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