[MUSIC] The last factor to differentiates the Frye and Daubert test is what the test actually applies to. Under the Frye test, the test only applies to the general principles or methodologies that underlie the experts opinion, not to the application of those methodologies or principles by the expert himself. Under Daubert in contrast, Daubert is going to apply both to the general methodologies and to the experts application of those methodologies in the specific case in which the expert is providing testimony. Let me give you an example, this time finally from genetics of how this might play out. So one Luna was convicted a first degree murder in connection with the 1993 shooting deaths of seven people at a restaurant in Palatine Illinois. His conviction was based in part on DNA evidence. Specifically the government had use short tandem repeat STR DNA testing to obtain a human DNA profile from chicken bones found at the murder scene. So Mr. Luna and his accomplices, when they went to the restaurant to commit the murder, they took the time to eat some chicken, they left behind their chicken bones. And in addition to the chicken DNA on the chicken bones, there was human DNA. And they used that human DNA to derive a genetic profile. And that genetic profile matched the defendant's. After he was convicted, Mr. Luna argued that the scientific evidence was unreliable. That the amount of DNA found on the chicken bones was too small for reliable DNA testing. And he actually had a pretty good argument. There is a limit, under which the amount of DNA does not provide a basis for reliable testing. And therefore labs will generally employ a sort of threshold requirement of a certain amount of DNA quantity before they will subject it to the next step in the DNA processing, which is copying of the DNA that they found. Amplifying the result and producing a sample large enough to subject the DNA testing. He had a pretty good argument that the amount on the chicken mount was too small to later be amplified and produce a reliable result. This argument plays out differently under the Frye test than under the Daubert test. Under the Daubert test, it's codified in Federal evidence rule 702. The government actually would have to show, first, that the expert's testimony was the product of reliable principles and methods. So at this step, we're just talking about the general methodology, the general principles that the experts are applying in conducting the DNA analysis. But in addition under the Daubert test, the rule tells us the government has to show that the expert has reliably applied the principles and methods to the facts of the case. And so under the Daubert test, it's clearly everything the expert did. Every choice that the expert made from adopting his general methodology to making very specific choices about how to apply that methodology in this specific case is subject to analysis under the Daubert test and it's subject to testing for liability. And so under the Daubert test, Luna would have a decent argument that by making the decision to apply, to conduct DNA testing despite the small size of the sample. The scientist who conducted the testing had violated principles of reliable DNA testing. And thereby head produced an unreliable result. And Luna could argue on a basis that the evidence should be subject to exclusion, but the Frye test operates differently. Remember the Frye test only applies to the expert's general methodology,. And so questions concerning the expert's application of these generally accepted techniques go to the weight of the evidence rather than its admissibility. What we mean by that is we' re not going to keep the evidence out just because the expert's application of the generally accepted techniques was wrong somehow, was unreliable somehow. Rather, the unreliability of this application would merely be something that the jury could consider in deciding how much weight to assign to the expert's testimony. It would not be a factor that would be relied on in holding that the expert's testimony was unreliable. The court said this in case called Donald, Donald central public service in Illinois. They made the point, Illinois again is a Frye state. They made the point that expert's application is not subject to the Frye test. The Frye test extends only to the general methodology. Said trial judges decide the general acceptance of a technique. The jury decides about the application. The jury decides whether it will accept the expert's conclusion, which is base on that technique. And so in a case like Luna, we're really only going to subject the general principles, the general methodology to the general acceptance test to the reliability test impose by Frye. We're not going to subject the more specific decision the more case specific decision that the expert has made in applying that general methodology. And so this itself deciding at what level of generality to define the methodology in the general principle can itself be called difficult. Because an experts testimony really starts with the most general principles. And he works his way down to the conclusion by applying ever more specific principles in apply his methodology. In the Luna case for example, what we identify as the general methodology or scientific principle that actually is subject to scrutiny into the Frye test? Is it DNA identification generally the idea that we can obtain a match by comparing a DNA sample from a crime scene against a DNA sample from the defendant? Is it the specific method of DNA testing that was used in the Luna case, Polymerase-chain-eaction or PCR DNA testing? Is it the short-tandem-repeat or STR variant, a PCR testing. Is it instead the low copy number, and we're just getting more specific as we go down through this list. Is it the low copy number or LCN variant of STR PCR testing which increases the number of amplification cycles. And therefore allows the DNA tester to use a very small sample in developing enough DNA to actually be tested for a match? Or finally is it used of amounts less than 15 nanograms in conducting LCN, STR, PCR testing? Which is of these is a general principle and which is part of the experts application of the methodology in question. It seems as though DNA identification is clearly part of the general principle. Probably PCR testing is a general principle, but what about the more specific aspects of the choice that the expert made in Mr. Luna's case? The choice, for example to proceed with less than .15 nanograms in conducting the test? The answer, if you look at the cases is generally that that sort of a choice is not consider a part of the general methodology. That's part of the specific choices, that's part of the application by the expert of the more general methodology. And so what you'll see in the cases is statements like this. And People v Pope for example, the Illinois public court said, Wwe hold that PCR-based methods of DQ-Alpha typing and polymarker typing for DNA identification are now generally accepted in the relevant scientific communities. So that means they've decided the general methodology, is the general principle of DNA testing based on DQ-Alpha typing and polymarker typing is reliable. That's their application of the freight test and then the court went on to say, any other question, any more specific question about how you apply that general methodology, really it's for the jury to decide. It's not going to be something that we're going to consider whether the expert testimony is reliable enough to be admitted. It's merely something for the jury to take into account in deciding whether they want to credit. The experts testimony or how much weight they want to assign to the experts testimony. And so under Frye, if we were to apply the Frye test to the Luna case, we would probably conclude that the more specific questions about the application of DNA test. And the kind of questions that Mr. Luna wanted to raise about whether the sample was too small. Aren't the kinds of questions to which the Frye test applies. The Frye test merely applies to the more general technique, a PCR short-handed repeat testing, not to the more specific application questions. And therefore, he wouldn't have a basis for raising his claim under Frye. In contrast, he would have a basis for raising it under Daubert, because Daubert again, goes all the way down. It applies not only to the very general principles at work in the experts testimony, but in addition it applies to every step in the application of that general methodology. So that's a short summary of the differences between Frye and Daubert. You're going to hear them discussed in these lectures that follow, and so now you'll know what they mean.