Dr. Kenneth Manges Ph.D. | Forensic Psychologist and Expert Witness
In a recent publication in the Florida Bar Journal by Cuello and Villavicencio September/October 2014, the Daubert standard was reviewed. The authors gave the history of how the Frye standard was changed in 1993 when the law changed from accepting the Frye standard to the Daubert standard regarding the acceptance of admissibility of expert witness testimony.
The Frye standard still acceptable in state courts by judicial discretion, but not in federal courts, is based on the understanding that an expert can testify when “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs (Frye, 293 F.at 1014).
Under Frye, if the opinion by the expert was not based on new or novel theories, its admissibility was tested under the pure opinion analysis, which is supported through the expert’s own experience and training (Mahle, The Pure Opinion Exception to the Florida Frye Standard, 86 Fla. B.J. 41 (Feb 2012). Prior to Daubert, the Frye standard had a “general acceptance” which meant that an expert could offer their opinion if the profession had in the expert’s opinion a general acceptance of what they were testifying about.
Daubert standards address not only the expertise of the witness but the basis on which they are offering their opinions. For vocational and psychological experts specifically, the expert must be relevant and reliable (to be able to be tested and to have a specific error rate that can be quantified). In addition, the principals and methods used by the expert have to be appropriately applied to the facts of the case. In vocational issues, it would be a standard such as the VDARE process and in psychology, it would be a correct analysis of Diagnostic and Statistical Manual (DSM) standards.
The four-way test of a Daubert standard are:
- Whether the theory or technique can (and has been tested)
- Whether it has been subject to peer review or publication
- Whether, with respect to a particular technique, there is a high “known or potential rate of error” and whether there are standards controlling the technique’s operation
- Whether the theory or technique enjoys “general acceptance” within a “relevant scientific community.” (Daubert v Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993)
The Daubert standards are simultaneously strict and liberal. The parameters are set but the expert can use their expertise to interpret and support their position. The exact wording gives an indication of the broadness and simultaneous specificity “the testimony must be so distinctly related to some science, profession, business or occupation as to beyond the ken of the average layman. Second, the witness must have such skill, knowledge or experiences in that field or calling as to make it appear that his or her opinion or inference will probably aid the trier of fact in its search for the truth.”
