How to Survive a Frye Challenge

Increasingly, civil lawsuits have come to rely on the assistance of expert witnesses. Experts occupy a special position in the witness world: unlike eyewitnesses, experts are permitted not only to answer questions about the facts of a case, but also to give reasoned opinions that fall within their realm of expertise.

Because they have greater leeway than other witnesses, expert witnesses and their testimony are also held to higher standards of admissibility. In federal courts and many state courts, the controlling case is Daubert v. Merrell-Dow Pharmaceuticals, in which the U.S. Supreme Court clarified the standard for expert witness testimony given in the Federal Rules of Evidence (often known as the “Daubert standard”).

As of 2013, however, nine states have declined to adopt the Daubert standard in their state courts. Instead, these states use the “Frye” or “Frye-plus” standard.

What is the Frye Standard?

In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the D.C. Court of Appeals weighed expert testimony regarding the reliability of lie detector test results. As the court noted, it wasn’t an easy task:

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Just when a scientific principle of discovery crosses the line between the experimental and demonstrable stages is difficult to define…. [W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle of discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.

The Frye “general acceptance” standard held sway in state and federal courts for decades. It informed a number of federal criminal trials, and it also made its way into federal civil trials beginning in the 1980s. While the Federal Rules of Evidence articulated a different standard in 1975, it was not until 1993, in Daubert, that the Supreme Court held that the Federal Rules of Evidence standard differed materially from the Frye standard—and that the Frye standard was no longer acceptable in federal courts.

Out of the Frye-ing Pan: Surviving a Frye “General Acceptance” Challenge

Because the Daubert standard applies in federal courts and most state courts, many attorneys are familiar with its multi-factor demands. Surviving a Frye challenge, however, demands attention to a slightly different set of priorities.

In order for an expert’s testimony to be admissible under the Frye standard, the party seeking to admit the expert’s testimony must be prepared to demonstrate both that the expert has expertise in their specific field, and that the methods and theories they use to support their opinions are “generally accepted” in that field.

Demonstrating Field-Specific Expertise

Demonstrating that an expert has field-specific expertise under Frye is, in practice, similar to doing so under Daubert. Typically, the expert’s CV, portfolio, or similar work summary will come into the process early, as attorneys seek to establish (or to challenge) the expert’s education, experience, and contributions to their field in the form of publications, conference presentations, and similar activities. During deposition, expert witnesses should be prepared to answer questions about their education and practice in their field, as well as publications or other projects they have undertaken and their familiarity with other experts in the field.

Demonstrating Methods are “Generally Accepted”

Addressing the second prong of the Frye challenge is often baffling for experts at first. Immersed in their field, with its particular standards and ways of constructing and interpreting knowledge, it can take them a moment to “switch gears” and see their field from a broader perspective.

To establish that the methods and theories a potential expert witness relies upon in reaching their opinions on the case are “generally accepted,” attorneys will typically take this broader view, using peer-reviewed literature and similar sources to show that the expert’s community has reached consensus on the methods used to support the expert’s opinions. During deposition, experts who prepare to answer questions on how theories, methods, and knowledge in their field are developed, tested, and accepted are often better equipped to address challenges that focus on this prong of the Frye standard.

One of the benefits of the Frye standard is that it focuses on contextualizing a particular expert’s approach within the greater setting of the expert’s field, giving needed background to judges and juries. The primary drawback, however, is that experts who work at the forefront of their fields—on emerging topics, methods, or theories—can find it difficult to succeed during a Frye challenge, because their “cutting-edge” approach has not yet gained consensus. Attorneys who choose expert witnesses, however, must consider carefully the standard to be met and choose an expert who is capable not only of giving a considered opinion on the case, but of meeting the evidentiary standard.