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Frye test had been
replaced by the Rule 702 of the Federal Rules of Evidence: “If scientific,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
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.
