CHAPTER 5 THE GENERAL ACCEPTANCE RULE AND THE DAUBERT CASE

• Jurisdiction: United States

Chapter 5 The General Acceptance Rule and the Daubert Case

Overview

The admissibility of forensic evidence based on science was governed in the federal courts by the General Acceptance Rule first stated in the case of Frye v. United States, decided in 1923. Shortly after Congress passed the Federal Rule of Evidence 702, governing admissibility of expert opinions, the Supreme Court ruled in 1993 that Rule 702 had superseded the Frye test. In this case, Daubert v. Merrrell Dow, the Court held that scientific testimony should be admissible if it meets alternate tests of reliability, such as a scientific hypothesis, publication and peer review, and error rate. This ruling governs the admissibility of expert opinions about forensic evidence in all federal courts.

The Daubert test was soon adopted in some state courts, but not in all. Some states retain the Frye test, and some use other tests. The Daubert test requires the trial court to act as a gatekeeper and decide outside the hearing of the jury whether the forensic expert testimony is admissible or not.

The Kuhmo case decided that the Daubert test should apply to experts testifying about a technique — such as examination of a tire to determine any defect—as well as science. The General Electric case held that an appeals court must defer to the trial court's gatekeeper decision, unless the trial court abused its discretion. After Daubert, courts have expanded the gatekeeper questions to include such issues as whether the science was developed specifically for litigation.

We examine the courts' reaction to the Daubert case in different chapters in this text. As a general matter, courts frequently cite the Daubert tests but rarely apply them step-by-step to the proposed expert testimony. Many courts make their decision to accept or exclude based on the training and experience of the expert or a review of other courts that have accepted similar experts, rather than the scientific reliability of the testimony. They apparently admit expert testimony based on whether it has been "generally admitted" rather than on the Daubert question of whether it has been "generally accepted" by the relevant scientific community. Commentators have pointed out that courts much more frequently allow a prosecution expert and exclude one proposed by the defense.

The National Research Council in its 2009 report stated "Daubert and its progeny have engendered confusion and controversy ... judicial dispositions of Daubert-type questions in criminal cases have been criticized by some lawyers and scholars who thought that the Supreme Court's decision would be applied more rigorously."¹

Chapter Objectives

Based on this chapter, student will be able to:

1. Explain the General Acceptance Test from the Frye case.
2. Describe how the case of Daubert v. Merrell Dow changed the Frye test.
3. Identify the elements of the Daubert tests.
4. Explain what happened to the plaintiffs' case in Daubert after the case was remanded back to the trial court.
5. Detail the role of the court in conducting gatekeeper hearings.
6. Explain the facts of the case of Kuhmo Tire and how it expanded the Daubert case.
7. Understand whether state courts were required to follow Daubert.
8. Describe the Connecticut state case of State v. Porter and its relationship to the Daubert case.
9. Identify the standard of appellate review of gatekeeper hearings in federal court under the General Electric v. Joiner case.
10. Identify issues courts have confronted in applying Daubert.

The General Acceptance Test

In 1923, Congress had not yet adopted the rules about expert witnesses referred to in the prior chapter. So the question of what standard to use in admitting forensic evidence was left to each individual court to decide. The Court of Appeals for the District of Columbia, a federal appeals court, made an important ruling in the case of Frye v. United States.² In this case, the court adopted a standard to be applied by all federal trial courts in the District of Columbia in determining whether an expert could testify. This standard was called the "general acceptance test." In effect, the court was guarding against letting juries hear "junk science" by requiring that any scientific expert could testify only about a scientific theory that was "generally accepted" by all scientists in the same field. The Frye case involved whether the jury could hear an expert opinion about a test similar to a polygraph. The court refused, on the ground that the science had not been proven. Here is part of its reasoning:

Frye v. United States, 293 F. 1013 (Ct. App. D.C. 1923)
...
A single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system.
Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.
In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.
Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.
Counsel for defendant, in their able presentation of the novel question involved, correctly state in their brief that no cases directly in point have been found. The broad ground, however, upon which they plant their case, is succinctly stated in their brief as follows:

"The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence."

Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
The judgment is affirmed.

The Frye case was subsequently referred to as the source of the General Acceptance Test. Following the Frye case, many courts—both state courts and federal courts in other appellate circuits — adopted the general acceptance test for scientific experts. When Congress enacted Federal Rule of Evidence 702, however, it was not clear whether Congress intended the rule to change the general acceptance test. The United States Supreme Court answered this question in 1993, in the case of Daubert v. Merrell Dow.

The Daubert Rule

In 1993, the Supreme Court issued a landmark decision in the case of Daubert v. Merrell Dow. This case was not a criminal case. It was a civil liability case for damages. Although many students think of forensic evidence only in the criminal context, this is not the case. In fact, the three major U.S. Supreme Court cases about forensic evidence, which are discussed in this chapter, were all civil liability cases.
In Daubert, the issue was whether Bendectin, a drug manufactured by Merrell Dow, caused birth defects. The plaintiff's expert was prepared to testify that it did, based on test-tube and live-animal studies and pharmacological studies, as well as a reanalysis of previously published studied. The defendant objected on the ground that no published epidemiological (human statistical) study had demonstrated a statistically significant association

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