The Daubert Standard
Court Acceptance of Expert Testimony
In Daubert and later cases2, the Court explained that the federal standard includes general acceptance, but also looks at the science and its application. Trial judges are the final arbiter or “gatekeeper” on admissibility of evidence and acceptance of a witness as an expert within their own courtrooms.
In deciding if the science and the expert in question should be permitted, the judge should consider:
- What is the basic theory and has it been tested?
- Are there standards controlling the technique?
- Has the theory or technique been subjected to peer review and publication?
- What is the known or potential error rate?
- Is there general acceptance of the theory?
- Has the expert adequately accounted for alternative explanations?
- Has the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion?
The Daubert Court also observed that concerns over shaky evidence could be handled through vigorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof.
In many states, scientific expert testimony is now subject to this Daubert standard. But some states still use a modification of the Frye standard.
2 The “Daubert Trilogy” of cases is: Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael.