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Riding Frye-Reed into the

Land Of Daubert James L. Otway

All attorneys who deal with expert witnesses and the

challenges of assuring that all of their opinions are successfully received in evidence are familiar with the changes heralded by the Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc.1

Tis article examines the affect of Daubert on the

Frye–Reed doctrine which, for the last thirty years, has been the yardstick in Maryland for measuring admissibility of expert opinions.

Maryland’s Frye-Reed Test

We begin our journey in 1923 in our neighboring District of Columbia where James Alphonso Frye was convicted of murder in the second degree. He appealed his conviction alleging the sole error of the trial court was its exclusion of evidence that he, Frye, had passed a lie detector test. Frye sought to introduce the testimony of a scientist who had performed a “systolic blood pressure deception test” on Frye prior to trial, and wanted to provide the results to the jury to bolster his credibility.2


defense objected and the trial court excluded the evidence. In affirming the trial court, the appellate court defined the threshold over which the scientific evidence must pass before it will be permitted in the courtroom:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception

test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.3

Court of Appeals formally adopted the Frye test in Reed v. State.4

It was not until fifty-five years later that the Maryland Reed was convicted of rape and other related acts, after

an expert testified at his trial that spectrographic voice analysis of post arrest statements made by Reed matched statements made to and recorded by the victim in a series of post rape telephone calls made to her by her assailant. In rejecting the admissibility of this type of evidence the Court held:

… before a scientific opinion will be received as evidence at trial, the basis of that opinion must be

1 Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993)

2 Te appellate court described the test as follows: “It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.

3 Frye v. United States, 54 App. D.C. 46,47, 293 F. 1013, 1014 (1923). 4 Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).

shown to be generally accepted as reliable within the expert’s particular scientific field. Tus according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.5

Since 1978, the Frye-Reed standard of general acceptance in the scientific community has prevailed as the standard of examination when there is question raised regarding the validity of the methodology employed by the expert, or about the strength of the foundation upon which his/her opinions are based. Te test has been employed to determine such varied “scientific” issues as the acceptance of the horizontal gaze nystagmus to determine the presence of alcohol in motorists;6

light microscopy to identify asbestos in human tissue;8 of lasers to measure velocity;9 evidence of identity.10

the treatment of musculoskeletal injuries;7

whether thermography is a valid diagnostic tool in the use of polarized the use

and the admissibility of DNA

Daubert and Federal Rule of Evidence 702 In 1993 the Supreme Court of the United States decided

Daubert, supra. In Daubert, the Plaintiffs alleged that a mother’s ingestion of the anti-nausea prescription drug Bendectin during pregnancy led to the birth of two children with serious birth defects. Disputes arose regarding the standard with which to determine the admissibility of opinion evidence regarding the causal connection between Bendectin and those defects. Te Daubert Court rejected the Frye- Reed “general acceptance” test, holding that Federal Rule of Evidence 702 superseded the test, and provided the standard to be used by judges in making a preliminary determination regarding the reliability of the scientific method upon which the expert bases his conclusions. Te Court held that the evidence must be both relevant and reliable and that the trial judge must make sure that both criteria are met. Justice Blackmun, writing for the Court, summarized the majority opinion as follows:

To summarize: “general acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence – especially Rule 702 – do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.11

Daubert was followed by Kumho Tire Co. v. Carmichael12

5 Reed v. State, 283 Md. 374, 381, 391 A. 2d 364, 367 (1978). 6 Schultz v. State, 106 Md. App 145, 664 A. 2d 60 (1995). 7 Sabatier v. State Farm Automobile Ins. Co., et al, 327 Md. 296, 609 A. 2d 307 (1992). 8 Keene v. Hall, 96 Md. App 644, 626 A. 2d 997 (1993). 9 Goldstein v. State, 339 Md. 563, 664 A. 2d 375 (1995). 10 Armstead v. State, 342 Md. 38, 673 A. 2d 221 (1996). 11 Daubert, supra at 588. 12 Kumho Tire Co. v. Carmichael, 526 US 137, 119 S.Ct. 1167, 143 L.Ed. 2d 238 (1999).

Continued on page 34 Trial Reporter / Summer 2009 31 in

1999 which extended the holding of Daubert to “technical” or “other specialized knowledge” as well as “scientific” knowledge. In the time since Daubert, the Fourth Circuit has further

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