Friday, June 30, 2017

Frye Dies at Home at 93

The general-scientific-acceptance standard for scientific evidence originated in the District of Columbia, when the federal circuit court for the District upheld the exclusion of a blood-pressure test for deception in Frye v. United States, 93 F. 1013  (D.C. Cir. 1923). In October of 2016, the District of Columbia's highest court ended the standard's 93-year life there.The D.C. Court of Appeals unanimously overruled Frye and replaced it with the more open-ended Federal Rule of Evidence 702.

It did so in Motorola v. Murray, 147 A.3d 751 (D.C. 2016) (en banc), at the request of the trial court,  which felt that Frye required the admission of expert testimony that cell phones cause brain tumors. That view was mistaken. It is quite possible to exclude, as not based on a generally accepted method, opinions of general causation from expert witnesses when the scientific consensus is that the pertinent scientific studies do not support those opinions. See Cell Phones, Brain Cancer, and Scientific Outliers Are Not the Best Reasons to Abandon Frye v. United States, Nov. 26, 2015.

Elsewhere, I have argued that the choice between the Daubert line of cases codified in Rule 702 and the earlier Frye standard is less important than is the rigor with which the courts apply either standard. The Court of Appeals in Murray remarked that "[p]roperly performing the gatekeeping function will require a delicate touch." Id. at 757. It noted that trial courts have "discretion (informed by careful inquiry) to exclude some expert testimony." Id. In the end, "[t]he trial court still will need to determine whether the opinion 'is the product of reliable principles and methods[,] ... reliably applied.'" Id. at 758 (quoting Fed. R. Evid. 702 (c), (d)).

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