Daubert vs. Frye: A State-by-State Comparison

This guide provides a state-by-state comparison of how Daubert and Frye standards are applied to determine the admissibility of expert testimony, highlighting the diverse legal approaches across the United States.

ByChristine Funk, J.D.

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Updated on

Daubert vs. Frye

In this article

Practical Applications of 

What is Federal Rule 702?

What is State Rule 702?

Rule of Evidence Standard by State

As a general rule, it is up to the lawyers, not the experts, to determine what evidence must be presented in court to meet a specific jurisdiction’s admissibility standards. That having been said, experts often want to know the requisite standard, as doing so allows them to better prepare for both direct and cross-examination. First, it’s best to understand the differences between Daubert and Frye.

Practical Applications of Daubert and Frye

Under Frye, the scientific community is essentially the gatekeeper determining evidence admissibility. Using the strict standard, if the scientific community finds a method or theory acceptable, the court must admit the evidence. Practically speaking, this means courts consider the issue once. Upon a finding of general acceptance, admissibility isn’t revisited in subsequent cases.

Under Daubert, the judge, not the scientific community, is the gatekeeper determining evidence admissibility. Because the factors under Daubert can be reevaluated, and because things such as additional information on error rates or additional peer-reviewed publication take place, the court has an ever-changing landscape. This allows for a case-by-case evaluation, rather than a single finding of admissibility, in theory.

While Frye offers a bright line rule, Daubert provides courts with flexibility. There is nothing that requires the court to consider all the Daubert factors, or requires the court to give more weight to one factor over other factors. In other words, it is up to the court to decide, based on a wide variety of possible factors, including “widespread acceptance,” whether a certain scientific method or technique is admissible.

In theory, Daubert admits evidence which courts may find reliable, yet not generally accepted, methodologies, and keeps out evidence which relies on a scientifically accepted method yet yields “bad science.” Conversely, under Frye, new methods that produce “good science” are excluded if they have not yet reached the level of “general acceptance.”

Practically speaking, however, there appears to be very little evidence the introduction of the more flexible Daubert Standard has had any impact on experts offered in state disputes.

What is Federal Rule 702?

Under the Federal Rule of Evidence 702, persons qualified as experts based on “knowledge, skill, experience, training, or education” are permitted to offer expert opinion testimony if the following conditions have been met:

  • the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
  • the testimony is based on sufficient facts or data
  • the testimony is the product of reliable principles and methods
  • the expert has reliably applied the principles and methods to the facts of the case[3]
  • The federal courts are all governed by Daubert

What is State Rule 702?

Each state also has a Rule of Evidence defining the rules under which an expert can testify. In most states, this rule is codified as Rule of Evidence 702.

Some states apply Daubert. Other states apply Frye. Other states apply a modified Daubert or Frye Standard. Still other states have their own standard of admissibility. Finally, some states apply Daubert in some circumstances, and Frye in others.

Below is a table of states and the admissibility standards for each. Note, the law is ever-evolving, and even within the table below, we note potential areas of change currently on the horizon.

Rule of Evidence Standard by State

Alabama

  • Rule of Evidence 702
  • Daubert and Frye depending on circumstances

Alaska

  • Rule of Evidence 702
  • Daubert

Arizona

  • Rule of Evidence 702
  • Daubert

Arkansas

California

Colorado

Connecticut

District of Columbia

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maine

  • Rule of Evidence 702
  • Neither State v. Williams, 388 A.2d 500 (Me. 1978); Searles v. Fleetwood Homes of Pennsylvania, Inc., 878 A.2d 509 (Me. 2005) although more Daubert than Frye.

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

  • Rule of Evidence 702
  • Daubert

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

  • Rule of Evidence 702
  • Daubert

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

  • Rule of Evidence 702
  • Daubert

Virginia

Washington

West Virginia

Wisconsin

Wyoming

  • Rule of Evidence 702
  • Daubert

While some states, such as Minnesota and Utah, specifically use the term “general acceptance” within their Rule of Evidence, other Frye states, such as Maryland and California, do not use Frye language, per se, within the rule governing testimony by experts.

Whether a state applies Daubert or Frye, a combination or both, or a modification of one or the other, the duty of the expert remains the same.

[1] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[2] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

[3] Federal Rule of Evidence 702.

[4] While Florida remains a Frye state as of this writing, Florida is a state to watch, as changes may be coming based on pending appeals.

[5] As of this writing, an appeal is pending which may result in a new, different, or consistent rule.

About the author

Christine Funk

Christine Funk, J.D.

Christine Funk, J.D., is a dual-qualified criminal defense attorney and forensic science consultant who has trained lawyers, judges, and law enforcement across three continents in various forensic science disciplines.

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