Daubert v. Merrell Dow Pharmaceuticals, Inc. vs. Frye v. United States
A side-by-side comparison of two landmark evidence cases
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (1993) (1993)
Holding
The Court held that the Federal Rules of Evidence, specifically Rule 702, superseded the Frye general acceptance test. Trial judges must serve as gatekeepers, ensuring that expert scientific testimony is both relevant and reliable. The Court articulated a flexible, non-exclusive list of factors for assessing reliability, including testability, peer review, error rate, and general acceptance.
Doctrine Established
Daubert Standard for Expert Testimony Admissibility
Frye v. United States
293 F. 1013 (D.C. Cir. 1923) (1923)
Holding
The court affirmed the exclusion of the deception test evidence, holding that expert testimony based on a scientific technique is admissible only when the technique has gained general acceptance in the particular field to which it belongs. Because the systolic blood pressure deception test had not achieved such acceptance, it was properly excluded.
Doctrine Established
General Acceptance Test for Scientific Evidence
Comparison Analysis
Daubert v. Merrell Dow Pharmaceuticals (1993) and Frye v. United States (1923) represent the two competing standards for the admissibility of expert scientific testimony in American courts. Frye established the 'general acceptance' test, holding that expert testimony based on a scientific technique is admissible only if the technique has gained general acceptance in the relevant scientific community. Daubert replaced Frye in federal courts, holding that the Federal Rules of Evidence superseded the general acceptance test and establishing a multi-factor reliability analysis for expert testimony under Rule 702.
Frye's general acceptance standard was the dominant test for seventy years. Its simplicity was both its strength and its weakness: it was easy to apply (is the methodology generally accepted?) but could exclude novel or cutting-edge science that had not yet achieved consensus acceptance, and it could admit outdated techniques that were generally accepted but scientifically questionable. Daubert replaced this bright-line test with a flexible, multi-factor approach requiring the trial judge to act as a 'gatekeeper' assessing whether the expert's methodology is reliable. The Daubert factors include: (1) whether the theory or technique can be and has been tested, (2) whether it has been subjected to peer review and publication, (3) the known or potential rate of error, (4) the existence of standards controlling the technique's operation, and (5) general acceptance in the relevant community (incorporating Frye as one factor among several).
The practical significance of this shift is enormous. Under Frye, novel or minority scientific methodologies were often excluded because they lacked general acceptance, even if they were methodologically sound. Under Daubert, courts can admit well-designed scientific evidence that has not yet achieved general acceptance, as long as it satisfies the broader reliability criteria. However, Daubert also gives judges more discretion to exclude expert testimony, leading to increased motion practice and 'Daubert hearings' that add cost and complexity to litigation. Kumho Tire Co. v. Carmichael (1999) later extended the Daubert gatekeeping function to all expert testimony, not just scientific evidence.
Similarities
- Both establish the standard for determining when expert testimony based on scientific or technical methods is admissible in court
- Both require some showing of the reliability of the expert's methodology before the testimony can be presented to the jury
- Both reflect the concern that unreliable expert testimony can mislead jurors who lack the expertise to evaluate it critically
- Both remain in use: Daubert governs in federal courts and about 40 states, while Frye still applies in several states including California, New York, and Illinois
Differences
- Frye applies a single criterion (general acceptance in the relevant scientific community), while Daubert applies a multi-factor reliability test with general acceptance as just one consideration
- Daubert gives the trial judge an active gatekeeping role in evaluating the reliability of expert methodology, while Frye defers to the scientific community's consensus
- Daubert is more permissive of novel science that has not yet achieved general acceptance but is methodologically sound, while Frye would exclude such evidence
- Daubert was explicitly grounded in the Federal Rules of Evidence (particularly Rule 702), while Frye was a common-law rule that predated the Federal Rules
- Daubert creates more opportunities for pretrial motion practice ('Daubert hearings'), increasing litigation costs, while Frye's simpler standard requires less judicial inquiry
Why This Comparison Matters
Evidence exams and cross-disciplinary litigation exams frequently test expert admissibility standards. Students must know which standard applies (Daubert in federal court and most states, Frye in a significant minority). Under Daubert, analyze the multi-factor test: can the methodology be tested? Has it been peer-reviewed? What is the error rate? Are there governing standards? Is it generally accepted? Under Frye, the sole question is general acceptance. Students should also understand that Kumho Tire extended Daubert to all expert testimony (including non-scientific technical and specialized knowledge) and that Rule 702 was amended in 2000 to codify the Daubert framework.
More Evidence Comparisons
Crawford v. Washington vs. Ohio v. Roberts
Crawford v. Washington (2004) and Ohio v. Roberts (1980) represent a fundamental shift in Confrontation Clause jurisprudence. Roberts established a reliability-based framework for the Confrontation Clause, holding that out-of-court statements by unavailable witnesses were admissible if they bore 'adequate indicia of reliability,' which could be established either by falling within a firmly rooted hearsay exception or by a particularized showing of trustworthiness. Crawford overruled Roberts and held that the Confrontation Clause bars the admission of 'testimonial' out-of-court statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.
Trammel v. United States vs. Upjohn Co. v. United States
Trammel v. United States (1980) and Upjohn Co. v. United States (1981) are both landmark privilege cases, but they address different privileges and serve different policy goals. Trammel reformed the spousal testimonial privilege, holding that only the witness-spouse (not the party-spouse) has the right to invoke the privilege against testifying about the other spouse's criminal conduct. This effectively gave prosecutors the ability to convince a willing spouse to testify against a criminal defendant. Upjohn addressed the attorney-client privilege in the corporate context, holding that the privilege protects communications between corporate counsel and lower-level employees (not just the 'control group' of senior executives), when the communications concern matters within the scope of the employees' duties and are made for the purpose of obtaining legal advice.
Old Chief v. United States vs. Huddleston v. United States
Old Chief v. United States (1997) and Huddleston v. United States (1988) both address the admissibility of evidence under Rule 404(b) and Rule 403 -- the rules governing other-act evidence and the prejudice-probative value balance -- but they reach different conclusions about when such evidence should be excluded. Old Chief held that when the existence of a prior felony conviction is an element of a felon-in-possession charge and the defendant offers to stipulate to the prior conviction, the trial court abuses its discretion by admitting the full record of the prior conviction because the inflammatory details of the prior crime create unfair prejudice that substantially outweighs the probative value when the stipulation equally proves the element. Huddleston held that the standard for admitting other-act evidence under Rule 404(b) requires only that the evidence be sufficient for a reasonable jury to find the prior act occurred by a preponderance of the evidence -- no preliminary finding by the judge is required.
Mutual Life Insurance Co. v. Hillmon vs. Tome v. United States
Mutual Life Insurance Co. v. Hillmon (1892) and Tome v. United States (1995) both address hearsay exceptions for statements revealing a declarant's state of mind, but they apply the doctrine in different contexts and illustrate both the power and the limits of the state-of-mind exception. Hillmon established that statements of a declarant's then-existing intent to do a future act are admissible under the state-of-mind exception (now Rule 803(3)) to prove that the declarant actually carried out the intended act. Specifically, Walters' letters stating he intended to travel to Crooked Creek with Hillmon were admissible to prove he actually went there. Tome addressed the prior consistent statement rule under Rule 801(d)(1)(B), holding that prior consistent statements are admissible to rebut a charge of recent fabrication only if the statement was made before the alleged motive to fabricate arose.