Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards

Abstract

Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state's choice of scientific admissibility standard matter? A growing number of scholars suspect that the answer is no. Under this theory, the import of the Supreme Court's Daubert decision was not in its doctrinal standard, but rather in the general consciousness it raised about the problems of unreliable scientific evidence. This Article empirically examines this question. Using data provided by the Federal Judicial Center, the National Center for State Courts, and the New York and Connecticut court systems, we apply a novel approach of using removal from state to federal court to measure litigants' perceptions of scientific admissibility standards in practice. Our analysis strongly supports the theory that a state's choice between Frye and Daubert does not matter in tort cases. The results raise larger questions about the efficacy of tort reform through procedural rules, suggesting that the judiciary in some contexts may be more responsive to educative measures than to doctrinally based procedural reforms.

Keywords: Daubert, Frye, removal, scientific evidence, admissibility, law and science, empirical, tort reform

JEL Classification: K13, K41