Trial and Error: The Supreme Court's Philosophy of Science

American Journal of Public Health, Forthcoming

The Coronado Conference: Scientific Evidence and Public Policy

34 Pages Posted: 12 Mar 2008 Last revised: 28 Apr 2008

See all articles by Susan Haack

Susan Haack

University of Miami - School of Law; University of Miami - Department of Philosophy


In Frye (1923) the D.C. Court upheld the exclusion of testimony of the results of a then-new blood-pressure deception test on the grounds that novel scientific testimony crosses the line between the experimental and the demonstrable, and so is admissible, only if it is sufficiently established to have gained general acceptance in the particular field to which it belongs. Ignored for a decade, rarely cited for a quarter-century, over time the Frye test became increasingly influential, until by the early 1980s it had been adopted by 29 states.

In 1975, however, newly-enacted Federal Rules of Evidence had set a seemingly less restrictive standard: the testimony of a qualified expert, including a scientific expert, is admissible provided it is relevant (unless it is excluded, under Rule 403, on grounds of unfair prejudice, waste of time, or confusing or misleading the jury).

In 1992 proposals to tighten up the Federal Rules were before Congress. In 1993 the Supreme Court issued its ruling in Daubert -- the first case in its 204-year history where the central questions concerned the admissibility of scientific testimony. The Frye rule arose in a criminal case, and had for most of its history been cited in criminal cases; but Daubert was a tort action in which the trial court had relied on Frye in excluding the plaintiffs' experts' testimony that the morning-sickness drug Bendectin was teratogenic. So the Supreme Court was to determine whether the FRE had superseded Frye, and in particular how Rule 702 was to be interpreted.

Yes, Justice Blackmun wrote for the majority, the FRE had superseded Frye; but the Rules themselves require judges to screen proffered expert testimony not only for relevance, but also for reliability.

In dissent, however, pointing out that the word reliable nowhere occurs in the text of Rule 702, Justice Rehnquist anticipated difficulties over whether and if so how Daubert should be applied to non-scientific expert testimony; worried aloud that federal judges were being asked to become amateur scientists; and questioned the wisdom of his colleagues' readiness to get involved in philosophy of science. I think he was right to suspect that something was seriously amiss; in fact, what I shall have to say here might be read as an exploration, amplification, and partial defense of his reservations about that philosophical excursus.

Suggested Citation

Haack, Susan, Trial and Error: The Supreme Court's Philosophy of Science. American Journal of Public Health, Forthcoming, The Coronado Conference: Scientific Evidence and Public Policy, Available at SSRN:

Susan Haack (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-3541 (Phone)
305-284-6506 (Fax)

University of Miami - Department of Philosophy ( email )

P.O. Box 248054
Coral Gables, FL 33124-4670
United States

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