The Daubert Trilogy in the States

Abstract

The Daubert trilogy of Supreme Court cases - Daubert, Joiner, and Kumho Tire, codified in Federal Rule of Evidence 702 - has established new rules for the admissibility of scientific evidence in federal court.

The situation in state courts is far more unsettled. First, a significant number of courts have continued to adhere to the tests they used before Daubert, either the Frye general acceptance test or some other test.

Even among those states that have adopted Daubert, its application has been decidedly nonuniform. Only a few states have adopted the Daubert trilogy in its entirety. Some states have adopted Daubert, but have not yet adopted Kumho Tire or Joiner. Others have adopted Daubert and Kumho Tire, but not Joiner, or have adopted only part of Joiner. Still other states view the Daubert trilogy as only instructive, or as consistent with their own traditional state tests but not binding.

This article analyzes the degree to which the holdings of the Daubert trilogy have been adopted by state courts. This analysis shows that there is a rich diversity of tests within the states. Indeed, contrary to the prevailing wisdom, the Daubert trilogy is not yet the majority standard even among the states that have rejected Frye.

Keywords: Forensic Economics, Litigation , Criminal Procedure, Tort, Products Liability

JEL Classification: K13, 41