This page contains a Flash digital edition of a book.
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


Te


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


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68