15 Miss. C. L. Rev. 163 (1994-1995)
Expert Testimony: Frye is Dead, Long Live Frye - Daubert v. Merrell Dow Pharmaceuticals, Inc.

handle is hein.journals/miscollr15 and id is 169 raw text is: EXPERT TESTIMONY:
Frye Is DEAD, LONG LIVE Frye
Daubert v. Merrell Dow Pharmaceuticals, Inc.
113 S. Ct. 2786 (1993)
Kari L. Foster
I. INTRODUCTION
The Court of Appeals for the District of Columbia Circuit set a precedent in
19231 that overshadowed the treatment of scientific evidence for over fifty years.2
The District of Columbia Circuit held that the admissibility of expert testimony
concerning novel scientific techniques hinged on whether the principle underlying
the technique was generally accepted by the relevant scientific community.3 When
Congress enacted the Federal Rules of Evidence [hereinafter the Rules] in 1975,
the Rules did not mention the Frye standard.4 Consequently, the circuits split
sharply on its continued viability.' Most courts read Frye's general acceptance
standard into the Rules.' However, a few circuits adhered strictly to the Rules,
which favor admissibility.7 Still other circuits articulated the Frye standard, but
admitted or excluded evidence according to a reliability standard they inter-
preted from the Rules.'
The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.9 held that
the Rules, not Frye, set the standard by which to gauge admissibility of expert testi-
mony.1 The Court went on to offer what it described as some general observa-
tions which districtjudges should consider to determine whether proffered expert
testimony is admissible under the Rules.1 This Note addresses whether the dis-
trict courts' application of Daubert and the Rules will produce any more uniform-
ity of results than did the different applications of Frye. In the process of analyzing
this issue, the Note discusses the different applications in the civil and criminal
contexts. Finally, the Note concludes with an analysis of whether Daubert, by
1. Frye v. United States, 293 F 1013 (D.C. Cir. 1923).
2. Paul C. Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century
Later, 80 COLUM. L. REv. 1197, 1205 & n.47 (1980).
3. Frye, 293 F at 1014.
4. See generally FED. R. EVID. 403, 702, 703, and the Advisory Committee Notes thereto.
5. Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After 16 Years-the Effect of Plain
MeaningJurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective
Revision of the Rules, 60 GEo. WAsH. L. Rev. 857, 877 (1992).
6. Id. at 877 & n.101.
7. See, e.g., United States v. Downing, 753 F2d 1224, 1237 (3d Cir. 1985) (holding that the conservative
approach of the general acceptance standard conflicted with the spirit of the Rules).
8. See, e.g., United States v. Solomon, 753 F.2d 1522 (9th Cir. 1985).
9. 113 S. Ct. 2786 (1993).
10. Id. at 2793.
11. Id. at 2796-98.

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