The traditional standard for the admission of medical testimony was
established in the Frye case, which involved the appeal of a criminal defendant
who was convicted based on a precursor to the lie detector. This machine
measured changes in the systolic blood pressure and the operator of the
machine would then correlate these changes with the defendant’s truthfulness.
The defendant argued that this was an unfounded technique that was not
recognized by scientists in the field. The Court agreed, and established this
standard:
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. [
Frye v. United States, 293 F. 1013,
1014 (App. D.C. Dec. 03, 1923).]
The Frye rule became the standard for federal and state courts evaluating
expert testimony. Before an expert witness could testify, the judge would have
to determine if the testimony met the
Frye test and, if it did, if the witness was
properly qualified to be an expert. For example, in a medical malpractice case
against a surgeon for negligence in the performance of a surgical procedure,
the plaintiff would have to have an expert who was well versed in surgery and
knowledgeable in the procedures at issue. If the plaintiff tried to use a
pharmacist to testify, the judge would exclude the testimony because a
pharmacist does not have the training and expertise of a surgeon. If the
plaintiff had a surgeon as an expert, but the surgeon wants to testify that the
defendant should have used a surgical procedure that no one but the plaintiff’s
expert uses, the judge would exclude the testimony because it was not
generally accepted.
The Frye rule has several shortcomings. General acceptability excludes many
new discoveries that have not had time to become generally accepted. General
acceptability is hard to establish for narrow areas of inquiry where there may
only be a few experts. It is also problematic if the plaintiff is arguing that what
is generally accepted is not true. In contest to
Frye, the tort law recognizes
that there are situations where what is generally accepted is not proper
behavior. [The T.J. Hooper, 60 F.2d 737 (C.C.A.2 1932).] Finally, the
Frye rule
proved difficult to administer, encouraging judges to allow broad latitude for
the admission of questionable evidence.
