test [was] the dominant standard for determining the admissibility of novel scientific evidence at trial.”11

In 1975, more than a half-century after Frye was decided, the Federal Rules of Evidence were promulgated to guide criminal and civil litigation in federal courts. The first version of Federal Rule of Evidence 702 provided that:

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.12

In place of Frye’s requirement of general scientific acceptance, mere “assistance” to the trier of fact appeared to be “the touchstone of admissibility under Rule 702.”13

After the promulgation of Rule 702, litigants, judges, and legal scholars remained at odds over whether the rule embraced the Frye standard or established a new standard.14 There was also much controversy surrounding the application of Rule 702 in civil cases. Most notably, Peter Huber popularized the now well-known phrase “junk science” to criticize the judiciary’s acceptance of unreliable expert testimony in support of tort claims.15 Huber’s study was sharply criticized,16 but it nonetheless spurred a debate over the use of expert testimony in the courts. However, “[d]espite the highly visible efforts to reform the rules governing experts in the civil arena, the ‘junk science’ debate … all but ignored criminal prosecutions.”17 The “neglect of the problems of expert testimony in criminal prosecutions” was seen by some as “deplorable.”18

11

Daubert, 509 U.S. at 585.

12

FED. R. EVID. 702, P.L. No. 93-595, § 1, 88 Stat. 1926 (effective January 2, 1975).

13

Giannelli, op. cit., supra note 10, p. 107.

14

T. Lyons. 1997. Frye, Daubert and where do we go from here? Rhode Island Bar Journal 45(5):21 (stating that “the vast majority of federal circuit and other courts adopted Frye as the standard of admissibility in their jurisdictions”).

15

P.W. Huber. 1991. Galileo’s Revenge: Junk Science in the Courtroom. New York: Basic Books.

16

See, e.g., K.J. Chesebro. Galileo’s retort: Peter Huber’s junk scholarship. 42 AM. U. L. REV. 1637 (1993); Book Note: Rebel without a cause. 105 HARV. L. REV. 935 (1992).

17

Giannelli, op. cit., supra note 10, p. 110.

18

Ibid., pp. 110-111. Over time, a number of courts and commentators found the “general acceptance” test seriously wanting. See 1 Faigman et al., op. cit., supra note 1, § 1:6, pp. 13-17; P.C. Giannelli. The admissibility of novel scientific evidence: Frye v. United States, a half-century later. 80 COLUM. L. REV. 1197, 1207-1208 (1980) (“[T]he problems Frye has engendered—the difficulties in applying the test and the anomolous results it creates—so far outweigh [its] advantages that the argument for adopting a different test has become over-whelming.”); M. McCormick. Scientific evidence: Defining a new approach to admissibility. 67 IOWA L. REV. 879, 915 (1982) (Frye’s “main drawbacks are its inflexibility, confusion of



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement