Expert Witness: Frye, Daubert, Joiner, Kumho, and FRE 702


Frye Test (“General Acceptance”), 1923

The Frye Test determines if an expert is qualified to offer an opinion based on whether the scientific method or theory of the testimony has reached the level of "general acceptance" in the scientific community.

“The principle must be recognized, and while courts will go a long way in admitting expert testimony 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.”


This rule admits evidence deduced from a well-recognized scientific principle of discovery. The deduction must be sufficiently established to have gained general acceptance in the particular field in which it belongs. The Court has discretion to define general acceptance criteria.

Daubert v. Merrill Dow, 1993 This ruling nullified use of the Frye Test, the “general acceptance” principle. Daubert sets standards for admissibility in court as set forth by the US Supreme Court. The judge should act as a gatekeeper and become responsible for determining whether expert testimony should be admitted into evidence. It questions admissibility of opinion and qualifications of the expert. "General acceptance" of scientific theory is no longer required as long as the reasoning or methodology underlying the testimony is scientifically valid and applicable to the facts at issue.

General Electric v. Joiner, 1997 Judges have discretion regarding what testimony to allow or not allow under admissibility rules, “abuse of discretion rule.”

Kumho Tire v. Carmichael, 1998, 1999 The Supreme Court concluded “that we can neither rule out, or rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence”; “the law grants the trial judge broad LATITUDE to determine”, and “the relevant reliability inquiry should be a ‘FLEXIBLE ONE,’ that its ‘over-arching’ subject should be validity and reliability, and that ‘Daubert was intended neither to be exhaustive nor to apply in every case.”

The gatekeeper function applies to all types of expert witnesses, not just scientific/technical knowledge. Daubert factors do not always apply and testimony must be relevant to facts of the case. The judge has discretion and leeway in admitting testimony. This rule expands Daubert when experts testify outside of pure science and include life care planners. It emphasizes the methods utilized by the expert to arrive at opinions and must be based on literature or proven testing, not just an expert's opinion. Rule 702 of Federal Rules of Evidence (FRE) “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if:


(1) the testimony is based upon sufficient facts or data.

(2) the testimony is the product of reliable principles & methods. (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 26, Amendment to FRE 702, Expert Discovery Pertains to disclosure of an expert witness. It requires:

  • A written/signed report that contains a complete statement of all opinions to be expressed and the basis and reasons thereof.

  • Data and other information considered by the expert witness in forming his/her opinions.

  • Qualifications of the expert witness including a list of all qualifications.

  • Include a list of all publications authored by the witness within the preceding 10 years.

  • Compensation to be paid for testimony.

  • List of any other cases in which the witness has testified as an expert at trial or by deposition in the preceding 4 years.

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