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Letter to the Editor
ABA Journal
RE: No Escape From Science

While reading the article by William C. Smith entitled No Escape From Science in the August edition of the ABA Journal (pp. 60-66), I was struck by a number of the comments allegedly made by both professors and practitioners regarding the Frye precedent — general acceptance in the relevant science — and the impact of the Daubert decision.

Professor JoAnne Epps is reported to have stated that Frye was too relaxed a standard because it permitted the introduction of ‘junk science,' and the Daubert decision cut back on that practice by requiring "innovative experts" to answer "a series of question" addressed to the reliability of the science at issue.

In fact, the opposite was true. The Frye test was the most restrictive standard we have yet devised for the admission of novel scientific evidence. Theoretically, nothing was admissible until it was familiar to the relevant science and generally accepted. Daubert is thought to have relaxed that standard by giving judges the power to conclude that particular scientific evidence is sufficiently reliable before a general consensus in the field has developed.

In the wake of Frye, there may have been a few decisions in which questionable science was permitted to be introduced. However, as Judge Marvin E. Aspen correctly noted,‘junk science' in the courtroom was never as prevalent as many have claimed. These few decisions were not the product of Frye — they were the product of a few erroneous applications of Frye by a limited number of courts.

In the Daubert decision the Supreme Court concluded that the Advisory Committee on the Federal Rules of Evidence intended a vast, albeit silent, revolution in the standard by which scientific evidence is screened — an interesting conclusion since, at that time, virtually every state and federal jurisdiction followed the Frye test.

Regardless of the accuracy of that assessment, the Court in Daubert theoretically shifted the focus of the screening, or gate-keeping, function from the scientists to the judge. The judge is now charged with determining the reliability of science that the scientists cannot agree upon. Because of the way in which this usually will be accomplished, Daubert's shift in focus, and therefore change in the standard of admissibility, may be more apparent than real.

The Daubert decision offered four nonexclusive factors that should be considered by the presiding judge in screening scientific evidence: (1) testing; (2) peer review; (3) potential rate of error; and (4) general acceptance. How the delineation of these factors is supposed to help judges move away from reliance on people in the relevant science (the Frye approach) is unclear when judges generally do not have the expertise to evaluate and apply them.

For example, if a new scientific principle were tested, how is the judge supposed to assess whether the testing was fair and adequate? If people in relevant scientific communities had conducted peer reviews and reported negatively, would the judge be privileged to ignore those reviews based on her own assessment of the science? How is a judge to decide what rate of error is acceptable?

To answer all of these questions, the overwhelming majority of judges will be compelled to go back to the same people they relied upon under Frye. Therefore, it might fairly be said, that Daubert may prove to be little more Frye in drag.

In predictable fashion, the Federal Judicial Conference through its Advisory Committee on the Federal Rules of Evidence has simply rubber stamped the Supreme Court's interpretation of Rule 702. Rather than promulgating a different rule that adequately addresses the problems that are now being confronted (which they have the power to do since the Court was only inter preting their rule), they have codified the inadequate directives of Daubert. Contrary to the claims by the Chemical Manufacturers Association and the Defense Research Institute, these revisions neither clarify the gate-keeping function of the courts nor set "meaningful standards for determining the reliability and the admissibility of testimony."

The issue of how law uses science in the resolution of social disputes cannot meaningful be addressed until we first answer the fundamental question of how we determine the appropriate standard of reliability. In the hard sciences, where scientific truths are being sought, the standard of reliability is often above 98%. Why would courts adopt that standard for determining whether the science can be employed in a judicial proceeding where right and wrong is being determined by a preponderance of the evidence? As long as we continue to resort to people in the sciences for advice and direction, the elevated scientific standards will continue to find their way into admissibility decisions.

Under Frye the question of reliability, and therefore admissibility, was delegated to the sciences. Each scientific discipline had its own standard of reliability that was accepted on it face. If judges, rather than the scientists, are now expected to make this determination, they must be given the standard by which reliability is to be measured. Until we give the gatekeeper this password — decisions about admissibility will be arbitrary, and therefore, unpredictable. Once this question is answered, the rest of this debate will subside.

            Professor Paul R. Rice
            Director, The Evidence Project
            American University
            Washington College of Law
            Washington, D.C.

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