[MUSIC] With the third difference, we're really getting to the heart of what the Frye and the Daubert tests were about. Frye requires the courts to defer to the relevant community of experts in deciding how reliable scientific evidence is. And by that, we mean the question that's posed by the Frye test is whether or not the scientific evidence in question actually has won general acceptance within the relevant community of experts. So what the court does is it defines the relevant community of experts. Usually it's going to be a narrow subject matter, specific body of scientific experts. And then, basically, it's going to count votes. Some courts actually use the phrase vote counting in referring to what Frye requires the courts to do. Basically, once it's defined the relevant scientific community, all it needs to do is do a head count and decide whether a majority of scientists in that community believe that this scientific methodology is reliable. And that's what drives the outcome in the Frye test. Let me give you an example of how that might apply. In the prosecution of William Greene for indecent liberties and kidnapping in Washington state, the state courts had to decide whether to permit a psychiatrist to testify that Green suffered from dissociative identity disorder. Which is also known sometimes as multiple personality disorder. In resolving this question under the Frye test, Washington state is one of the places where the courts continue to apply the Frye test. The courts asked whether the existence of the psychiatric disorder was generally accepted within the psychiatric community. What that meant was that the court had to, first of all, identify the relevant scientific community, in this case, it would clearly have been the psychiatric community. And then it would've taken a head count. It would've determined whether or not this particular diagnosis had won general acceptance within the psychiatry community, whether most psychiatrists believed it was a real thing. And this was a real issue. As it turns out, at the time that this case was decided, there was a lot of disagreement in the psychiatric community about whether dissociative identity disorder was a real thing. And if it was, what the relevant criteria were for diagnosing it. If instead we were to resolve this kind of question under the Daubert test, the court couldn't engage in vote counting. The court couldn't defer to the relevent psychiatric community. Instead what the court would be required to do would be to actually decide whether or not the scientific evidence was actually reliable. It couldn't defer to the psychiatric community. And so in the case of dissociative identity disorder, for example, the court would actually have to decide whether or not the scientific studies in which this disorder had been recognized, and the diagnostic criteria defined, were actually good science. Whether the scientists who had reached that conclusion had actually been doing good psychiatry, good science in arriving at that conclusion. Granted, under the Daubert test the court would be able to consider the breadth of acceptance of that psychiatric disorder within the relevant community. In the Daubert case itself, the US Supreme Court said that one of the factors that courts can rely on in deciding when their expert testimony is reliable is the degree of its acceptance in the relevant community of experts. But, ultimately, the question is not whether it can be accepted in the community of experts, the ultimate question is whether or not it's reliable. The general acceptance is not an end in itself, it's not the actual conclusion that the court's drawing. Rather, it's merely a means of evidence for ascertaining whether or not the science that was done was actually reliable or not. And so, we do again, with respect to this factor, wind up with pretty different results under the Frye test as under the Daubert. Under, Frye, again, the courts wind up deferring to the relevant community of experts, just asking what the community of experts thinks about the reliability of the evidence. Whereas with Daubert, the court has to undertake the difficult, messy, task of actually delving into the scientific literature and finding out whether the science underlying the expert's testimony is valid or not. And that's pretty difficult. And a lot of judges weren't happy when the Daubert case was decided. That now for the first time, they really had to engage with the methodology of disciplines other than law.
