Frye and Daubert are the two tests for deciding whether your valid, reliable scientific evidence is admissible and whether the other side’s junk pseudo-science should be kept out. The conventional wisdom is that the Frye test is “rigid” while the Daubert test is “permissive.” Daubert is the Blackberry and Frye is the decrepit old corner pay phone. Frye, we are told, is nothing but “counting noses,” while Daubert has all kinds of cool apps like “falsifiability” and “error rate,” which lets judges talk like scientists.
But judges aren’t scientists, in fact they barely understand – well, let’s not go there. But it’s crazy to expect judges to decide scientific questions, as the Ninth Circuit squawked when the Supreme Court remanded Daubert with instructions to determine falsifiability and error rate.
Daubert alludes to “the problem of demarcation,” i.e., whether a theory is empirical science or unfalsifiable metaphysics. Empirical science is what the People’s expert does and metaphysics is what your expert does.
Under Frye, the judge is only supposed to decide whether the evidence is based on techniques and methods generally accepted by the relevant scientific community. So if you see the judicial brow furrowing over whether controlled experiments using college students are applicable to the “real world” — object. New York is Frye territory.
Under Frye, the judge has to decide whether the expert represents the relevant scientific community or just cronies. That’s easy. If the defense proffers a bunch of peer-reviewed articles, this obviously shows that the expert is part of a very big-time racket.
The judge also has to decide whether there’s a consensus in the field. This too is easy. Your peer-reviewed articles invariably end with a call for more research, a candid admission that there’s a “raging controversy” in the field.
Professor Adina Schwartz – lawyer and philosopher – proposes a better test. The relevant scientific community should mean scientists, not technicians such as Officer Thumbtack testifying, “After a 2-week course and looking at 5,000 bullets, based on my training and experience, this bullet fragment came from the defendant’s gun.”
The relevant community is also not commercial as in, “My company has an exclusive patent on the hokey-pokey test and we agree that it’s completely reliable.” And it’s not scientists who are unfamiliar with the forensic application of the technique, such as Watson and Crick who discovered DNA without knowing how to match it to your client.
Professor Schwartz also proposes that the People be held to a higher standard of admissibility than a criminal defendant, since the proffer of expert testimony implicates the right to present a defense. We’d be happy with equality, at least for starters.