[MUSIC] Let's start with the kinds of testimony to which the Frye and the Daubert tests apply. The Frye test applies only to scientific expert testimony, whereas the Daubert test applies to all expert testimony. So the Daubert test is going to apply not just to scientists, but to people who provide technical expertise. To people who testify, say, about techniques used in farming or techniques used in accident reconstruction, which, strictly speaking, can't be characterized as scientific. Let me give you just a basic example of what I mean. In a 2006 divorce proceeding, a woman named Valery Alexander called an accountant named David Wood to testify about the value of her husband James's medical practice. James objected to this testimony by David Wood, invoking the Frye test and saying that the testimony by David Wood was insufficiently reliable to be admitted under the Frye test. After closely examining Wood's valuation methodology, which Wood himself referred to as multiattribute utility theory, the court concluded that this testimony was not scientific and therefore wasn't subject to the Frye test. Therefore, it didn't need to satisfy the reliability requirement of the Frye test before being admitted. The result would have been different under the Daubert test. Under the Daubert test, all expert testimony, whether it's from accountants, or scientists, or farmers, is subject to evaluation for its reliability. And therefore, if the Alexander case had arisen in a jurisdiction in which the courts applied the Daubert test, James's objection would have been considered by the court and the court would have decided whether the evidence was reliable enough to satisfy the Daubert test. So that's the first difference between the two. One applies only to scientific expert testimony, the other applies to all expert testimony. The next difference between the two is that Frye applies only to novel scientific methodologies, whereas Daubert applies even to long-accepted methodologies. And this is a really important difference between the two. Under the Frye test, as soon as a particular scientific methodology had come into general use and started to be admitted by courts, it no longer was considered a novel scientific methodology, and so nobody could go back and say, look, this scientific methodology is unreliable. Under Daubert, by contrast, it's possible to challenge even long-accepted scientific methodologies and arguing that the fruits of those methodologies are unreliable, and arguing that the scientific conclusions reached by the expert are unreliable. Let me give you an example of a case where this difference is significant. In 2014, Marcus Rivers was convicted of burglary and attempted robbery. The government's evidence, as in a lot of cases, included fingerprint evidence. In particular it included latent fingerprints left behind by the burglar on some bicycles that matched Rivers's fingerprints. Rivers objected under Frye to the introduction of the fingerprint evidence. He argued that the fingerprint comparison evidence was too unreliable to be admitted in court. The courts in the jurisdiction where his claim arose applied the Frye test. And so they rejected his claim after concluding that fingerprint identification is neither new nor novel. After all, fingerprint identification testimony has been being admitted in the courts in the United States since way back in 1911. So it's not new, it's not novel. And therefore, it's not subject to scrutiny under the Frye test. And it's admissible, therefore, regardless of whether a court makes a determination that it's reliable under Frye. In contrast, under the Daubert test, litigants can challenge even long-accepted techniques like fingerprinting. And in fact, since Daubert was adopted by the US Supreme Court in 1993, a large number of litigants have argued, generally unsuccessfully, but they've still argued that fingerprinting evidence is too unreliable to be admitted in court. It's not scientific enough, they haven't done enough to justify the results reached by fingerprint experts and show that they are actually reliable. These arguments have generally been rejected, as I've said. But nevertheless, under Daubert, it's possible to make those kinds of arguments. It's possible to go back and say that even expert testimony of a kind that's been admitted in the courts for a long time is too unreliable and shouldn't be admitted in court. So that's a second difference between the two tests.
