The Daubert Challenge  and the Frye Test

     The use of a FDE’s report is guided by Rule 702 of the Federal Rules of Evidence that states: “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”.Federal Rules of Evidence Nos. 702, 703, 705 and the decisions by the court in  Frye v. U.S., 293 F.1013 (D.C.Cir.’23)  together have become the test by which reliable expert testimony is allowed in the courts.

      In  Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 US 579 (1993), the Supreme Court defined what constituted scientific knowledge — the admissibility an expert’s evidence based on the courts determination of the relevance a nd reliability of that evidence under Rule 702. Since 1993 there have also been numerous court decisions concerning theDaubert challenge to Rule 702 and what was known as the Frye Test .

      Theburden of proof requirement legal counsel must meet has an impact on expert witnesses. Frequently, legal counsel expects the expert witness to state his opinion in language that corresponds to the legal standard applicable to the relevant burden of proof. These standards are, for example:

Beyond a reasonable doubt    The level of proof counsel must establish in a criminal case, based on all the evidence he presents, must show that beyond a reasonable doubt the things he said happened, happened. “Beyond a reasonable doubt” is “the highest level of proof required to win a case” . Reasonable doubt is: “The level of certainty a   juror must have to find a defendant guilty of a crime. A real doubt, based upon reason and common sense after careful and impartial con­sideration of all the evidence, or lack of evidence, in a case.

“Proof  beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your affairs. However, it does not mean an absolute certainty”

In a civil case there are two levels of proof counsel may be required to meet: “clear and convincing evidence” and the “preponderance of the evidence".

The clear and convincing standard   “The level of proof sometimes required in a civil case for the plaintiff to prevail. It means the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard but less than beyond a reasonable doubt

The preponderance of the evidence standard  “The level of proof required to prevail in most civil cases. The judge or jury must be persuaded that the facts are more probably one way (the plaintiffs way) than another (the defendant’s)”

Note: If you are not legally trained you should not rely on your own interpetation of the law. The LAW is "fact pattern" sensetive and does not always apply when it appears to do so to the lay person.