The Daubert Test
The U.S. Supreme Court agreed with the plaintiffs that the Frye test had been replaced by the Rule 702 of the Federal Rules of Evidence: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 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.” [Federal Rules of Evidence Rule 702, 28 U.S.C.A.]
As compared with the Frye rule, Rule 702 transfers the responsibility for evaluating the credibility of the evidence from the general scientific community to the judge. Rather than determining general acceptability, the judge must decide if the evidence is credible enough to assist the jury in making its decisions, or whether it would only mislead the jury. The Court cautioned that this should be a flexible process and that the trial judge has great discretion in making this determination. The Court recommended a set of criteria that the judge should look to in determining whether evidence should be allowed to go to the jury:
1. whether the expert’s theory can be or has been tested
2. whether the theory has been subject to peer review and publication
3. the known or potential rate of error of a technique or theory when applied
4. the existence and maintenance of standards and controls
5. the degree to which the technique or theory has been generally accepted in the scientific community [Moore v. Ashland Chemical Inc., 151 F.3d 269 (5th Cir. 1998)]
The court clearly states that the intent of the Daubert test is to broaden the judge’s authority to admit evidence that was not acceptable under the Frye test, because, although credible, it was not generally accepted. Paradoxically, the result has been very different in many courts. Spurred on by the U.S. Supreme Court’s insistence that the trial judges should be more active in reviewing evidence, trial judges have been much more willing to disqualify experts and testimony than they were in the Frye days. The lower court in the Daubert case, reexamining the evidence in view of the Supreme Court’s ruling, again dismissed the plaintiff’s case. This is not universal. Some judges use the Daubert test to admit very questionable evidence that clearly would not have been allowed under a strict reading of Frye. This has less impact than would be expected because these judges tended to apply the Frye test so generously that it also gave little protection against the admission of improper evidence.