Frye v. United States, 293 F. 1013 (D. C. Cir 1923) was the benchmark for what scientific testimony was admissible in federal courts for almost 70 years. In Frye, the trial court excluded the expert testimony of results of a systolic blood pressure deception test on the grounds that the test had not achieved general acceptance in the related scientific community (Welch, 2006). The defendant was found guilty and subsequently appealed his conviction. The Court of Appeals for the District of Columbia in 1923 sided with the trial court and stated that expert testimony based upon a scientific principle was not admissible unless the principle had gained general acceptance in its field (Welch, 2006).

Early on Frye was basically ignored; however, the anticipation of enactment of the new Federal Rules of Evidence in 1975 by Congress sparked interest in Frye, but the passage of the rules ultimately led to Frye’s “slow decline in federal courts” (Sanders, 2001, p. 376). Because the Federal Rules of Evidence and its accompanying reporter notes did not mention Frye in relation to the admissibility of evidence, courts became divided whether the new federal rules superseded Frye (Sanders, 2001). Although many federal circuits abandoned Frye, the Ninth Circuit surmised that Frye was still viable (Sanders, 2001). 

                                  Along Came Daubert

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), two children born with limb reduction birth defects and their parents sued Merrell Dow claiming that a morning- sickness drug manufactured by Merrell Dow and ingested by their mothers during pregnancy caused their defects. The Ninth District Court applied the Frye standard and “found that the scientific principles upon which the plaintiffs’ expert testimony was based were not "generally accepted” and issued summary judgment in favor of Dow Pharmaceuticals, which the Court of Appeals for the Ninth Circuit affirmed (Welch, 2006, p. 1087). The Supreme Court granted certiorari primarily to end the disagreement among the courts on applicability of the Frye standard due to the apparent conflict to the Federal Rules of Evidence (Sanders, 2001). In Daubert, the Supreme Court stated that the “drafting history” makes no mention of Frye, and a rigid “general acceptance” requirement “would be at odds with the Rules’ liberal thrust and their general approach of relaxing the traditional barriers to ‘opinion’ testimony” (p. 579). In Daubert, the Supreme Court wanted scientific testimony or evidence to meet a two-prong test for admissibility: relevance and reliability (Welch, 2006).

                               Creation of the Federal Rules of Evidence

In 1975, Congress enacted legislation that created the Federal Rules of Evidence by codifying the existing rules of evidence. Rule 702 governs the admissibility of expert testimony and has undergone several modifications since enacted. The original 1975 rule reads as follows:

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.

In 2000, Rule 702 was amended to incorporate guidance found in the Daubert and its progeny. The amended rule reads as follows:

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, if (1) the testimony is sufficiently based upon reliable facts or data, (2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.

The amendment did not take away from the previous version, but added text to expound on reliability factors. The amended Rule came with extensive supporting commentary, Committee Notes on Rules – 2000 Amendment (Notes), which elaborate on the intent of the Rule. The Notes are important and fundamental in understanding and interpreting the Rule.

                                                         Committee Notes on Rules

The Notes state that this was not an attempt to ‘codify’ the Daubert factors and recognize “that not all of the specific Daubert factors can apply to every type of expert testimony” (para. 3). The Notes state that “the amendment affirms the trial court’s role as a gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony” (para. 1). The Notes make specific reference to Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) by stating that “these factors might also be applicable in assessing reliability of nonscientific expert testimony, depending upon ‘the particular circumstances of the particular case at issue’” (para. 2).

The Notes supply significant commentary on non-scientific related expert testimony. The Notes declare that “some types of expert testimony will not rely on anything like a scientific method, and so will have to be evaluated by reference to other standard principles attendant to the particular area of expertise” (para. 15). The Notes further state that the trial judges must evaluate the proffered expert testimony and “find that it is properly grounded, well-reasoned, and not speculative before it can be admitted” (para. 15).

The Committee Notes on Rules – 2011 Amendment state that the language of Rule 702  was amended to make the Rules “more easily understood” and were stylistic changes only with no intent to change anything about the Rule’s application in court (para. 1).

                                                 Conclusion

It is important to note that Daubert applies to all federal courts and some state courts. Not all states have adopted Daubert for some large states still follow Frye and others follow a variation of Daubert. A forensic accountant must  understand the principles of admissibility of expert testimony as it applies to the jurisdiction of the case. For more details about expert witnessing, see Crumbley, Heitger, and Smith, 2012.  

References:

Crumbley, D. L., L.E. Heitger, and G. S. Stevenson (2012). Forensic & Investigative Accounting, 5th edition, Chicago:  Commerce Clearing House

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

Federal Rules of Evidence 702, Testimony by expert witnesses. (2011)

Federal Rules of Evidence 702, Testimony by expert witnesses, Committee notes on rules – 2000 amendment. (2011)

Federal Rules of Evidence 702, Testimony by expert witnesses, Committee notes on rules – 2011 amendment. (2011)

General Electric Co. v. Joiner, 522 U.S. 136 (1997).

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

Sanders, J. (2001). “Kumho” and How We Know. Law and Contemporary Problems, 64(2/3), 373-415.

Welch, C. H. (2006). Flexible standards, deferential review: Daubert’s legacy of confusion. Harvard Journal of Law & Public Policy, 29(3), 1085-1105