Daubert Standard

The Daubert standard, established in Daubert v. Merrell Dow Pharmaceuticals (1993), replaced the Frye "general acceptance" test as the federal standard for the admissibility of expert scientific testimony. Under Federal Rule of Evidence 702, the trial judge acts as a gatekeeper, ensuring that expert testimony is both reliable and relevant before it reaches the jury.

Under Daubert, the court considers several non-exclusive factors in assessing reliability: (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 error rate; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the theory or technique has gained general acceptance within the relevant scientific community (the old Frye factor, now one of several considerations).

Kumho Tire Co. v. Carmichael (1999) extended Daubert's gatekeeping function to all expert testimony, not just scientific evidence. This includes testimony based on technical or other specialized knowledge, such as engineering opinions, forensic analysis, and industry practice. The court has flexibility to determine which Daubert factors are relevant depending on the nature of the expertise.

The Daubert standard reflects a balance between two concerns: ensuring that the jury is not misled by unreliable "junk science" and ensuring that legitimate scientific evidence is not excluded by rigid tests. The standard gives trial judges significant discretion, and their admissibility rulings are reviewed on appeal under the abuse of discretion standard.

Not all jurisdictions follow Daubert. Some states (including California, Illinois, and New York) continue to use the Frye standard, which admits expert testimony only if it is based on scientific methods that are generally accepted in the relevant scientific community. Students should know which standard applies in the jurisdiction being tested.

On evidence exams, Daubert analysis is triggered whenever expert testimony is offered. Students should analyze the reliability of the methodology (not the conclusions) and the relevance of the testimony to the facts of the case.