The End of Frye-Reed

By Derek Stikeleather

Maryland’s Frye-Reed era appears to be ending. Last month, in Savage v. State,[1] the Court of Appeals handed down a significant decision on “the proper scope for the threshold evaluation of expert scientific evidence” under Maryland’s “Frye–Reed” test. Although the Frye-Reed test, as originally envisioned, would preclude only opinions based on novel scientific methodologies that were not “generally accepted as reliable within the expert’s particular scientific field,”[2] its scope has greatly expanded in recent decades. The Savage opinion highlights that Frye-Reed now precludes opinions, even those based on methodologies that are both (1) not novel and (2) generally accepted, if the reasoning behind the opinion is simply unreliable. Under Savage, the Frye-Reed inquiry requires trial judges—regardless of whether the expert’s underlying methodology is well-established and valid—to examine “whether the expert bridged the ‘analytical gap’ between accepted science and his ultimate conclusion in a particular case.”

How did we get here and where are we headed? For anyone who has ever struggled to nail down the proper standards for Frye-Reed (and Maryland expert testimony generally), the task can be maddening. Earlier this year, I immersed myself in a project to uncover what the Savage court would later call “the proper scope” of the Frye-Reed test and its relationship to Maryland Rule 5-702(3), which requires trial judges to ensure that any expert opinion has a “sufficient factual basis.” For the reasons detailed below, I believe that Frye-Reed is on its last legs and Maryland on the eve of adopting the Daubert standard as a guide for all expert testimony under Maryland Rule 5-702. Here’s why:

For the last quarter century, when deciding whether scientific expert opinions are reliable and admissible, Maryland judges have been needlessly pulled in two different directions because Maryland still uses two different tests for such testimony. It has both a traditional indirect test and a modern direct test. The common-law Frye-Reed test indirectly tests an opinion’s reliability by asking if it is “generally accepted” in the relevant scientific community. But its modern test, Rule 5-702(3), directly asks if the opinion has a “sufficient factual basis” and reliable methodology.

Two tests are not better than one. Maryland should not continue to apply two different tests to answer one question when the modern test is superior to the antiquated one. Maryland’s Frye-Reed standard for scientific opinion testimony has become increasingly incomprehensible, and the federal Daubert standard for expert testimony continues to influence both Frye-Reed and 5-702(3) case law. Retiring the Frye-Reed test altogether and adopting the federal Daubert standard would focus judges directly on an opinion’s reliability and free them from the irrelevant, distracting, and time-consuming inquiries required by the indirect Frye-Reed test.

The Evolution of Judicial Tests for the Admissibility of Scientific Expert Testimony

Until the late twentieth century, common-law judges weighed the reliability of scientific-opinion testimony indirectly by considering whether others accepted the expert or opinion. Long before the Frye test, courts used a “commercial marketplace test.”[3] Its rationale: “If a person could make a living selling the knowledge at issue, then expertise presumably existed.”[4]

Although the commercial-marketplace test gave judges the virtue of simplicity—“What was good enough for the marketplace was good enough for the courtroom”—it was not logically sound.[5] An opinion’s commercial value neither ensures its reliability nor validates the expert’s other opinions.[6] For example, expert astrologers and fortune tellers sell their expertise because the market values entertainment as well as reliability.[7] Conversely, some valid scientific fields have little or no commercial value.[8]

In 1923, in Frye v. United States, the D.C. Circuit introduced the “general acceptance” test, which replaced the commercial-marketplace test, but the change was not revolutionary.[9] The Frye test asked whether an expert’s opinion was generally accepted in the expert’s relevant field, i.e., among other experts, rather than in the commercial marketplace. But this is merely the marketplace test with the “intellectual or professional marketplace” acting as “a proxy for the commercial marketplace.”[10] Although Frye did take the important step of separating the expertise from the expert, both tests still used the same premise; general acceptance equals reliability.[11]

Often lost in the modern judicial application of Frye is the fact that, despite its profound influence on evidence law, it was a truly insignificant decision when issued and for decades afterwards. Issued in 1923, Frye was not cited by any other court for a decade and, during “the first quarter century after its publication, Frye was cited in only eight federal cases and five state cases.”[12] Courts “cited Frye [only] five times in published opinions before World War II, mostly in cases involving lie detectors.”[13] Prof. David Faigman adds that “[n]o contemporary law review articles were written about [Frye], commentators ignored it, and other courts did not cite it.”[14]

Like most of America, Maryland was in no rush to embrace Frye’s general-acceptance test. Dissenting in the 1978 opinion that ultimately adopted Frye, Judge Smith noted that, until “the decision in Reed v. State, 35 Md. App. 472, 372 A.2d 243 (1977), Frye had never been cited in Maryland,” nor had its concepts been applied in Maryland.[15] He argued that the Reed majority, instead of adopting the Frye standard, e.g., “the basis of [an expert’s] opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field,” should have been conforming it to “the doctrine of logical relevance.”[16] He argued (unsuccessfully) for a direct assessment of an opinion’s reliability: “That is, scientific evidence could be submitted to the jury upon a showing of reasonable reliability.”[17]

Through the Reed decision, Maryland adopted Frye as the controlling test for courts to ensure the reliability of novel scientific opinions: “with particular regard to expert testimony based on the application of new scientific techniques … it must be established that the particular scientific method is itself reliable.”[18] But under Frye-Reed, courts would still have to indirectly assess the reliability of novel scientific opinions by deciding whether the opinion is “generally accepted as reliable within the expert’s particular scientific field.”[19] “Thus, according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.”[20]

In the late-twentieth century, all federal and most state courts stopped indirectly testing the reliability of novel, scientific opinions. Under modern evidence rules, most courts now directly test the reliability of all expert opinions. Federal Rule of Evidence 702, as originally enacted in 1975, instructed: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”[21]

For almost twenty years after FRE 702 was enacted, courts debated whether Rule 702’s direct standard was compatible with the Frye’s indirect general-acceptance standard. Although most federal appellate courts decided that FRE 702 and the Frye standard were compatible, they were eventually overruled.[22]

The Supreme Court’s 1993 Daubert opinion settled the matter, holding that Frye’s general-acceptance test, an “austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.”[23] It held that “‘[g]eneral acceptance’ is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence” and that Rule 702 requires the trial judge—acting as a “gatekeeper”—to directly assess and ensure the reliability and relevance of a proffered expert opinion.[24]

The Supreme Court’s 1997 Joiner opinion elaborated that the Daubert inquiry can exclude a conclusory opinion, even when offered by a well-credentialed expert who purportedly used a reliable methodology.[25] Although Daubert’s reliability inquiry focuses on an opinion’s methodology and not its conclusion, the Joiner court recognized that the two “are not entirely distinct from one another.”[26] And “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.”[27]

Completing its “Daubert trilogy” with its 1999 Kumho Tire opinion, the Supreme Court affirmed that the Rule 702/Daubert inquiry is not narrowly limited to purely scientific opinions.[28] It held “that Daubert’s general holding—setting forth the trial judge’s general ‘gatekeeping’ obligation—applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”[29]

The Kumho Tire opinion also re-affirmed that Daubert’s “test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.”[30] Accordingly, when considering Daubert’s “specific factors, such as testing, peer review, error rates, and ‘acceptability’ in the relevant scientific community,” a “trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability.”[31]

The Supreme Court’s Daubert trilogy cemented the federal court system’s transition from one where the admissibility of scientific opinion evidence hinged on judges indirectly assessing whether it was accepted by others to one where judges had to directly evaluate an expert’s opinion “to ensure [its] reliability and relevancy” and “to make certain that an expert … employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”[32]

Federal Rule 702 was amended in 2000 to expressly incorporate the Daubert trilogy. As amended, it retains the original language but is now explicitly conditioned upon whether “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”[33]

Maryland enacted its own version of Rule 702 in 1994, when Maryland “codified [its] rules of evidence in general conformance with the Federal Rules of Evidence.”[34] Even in the discrete context of expert testimony, Maryland’s “case law is consistent with the [2000] amendments to Rule 702 of the Federal Rules of Evidence.”[35]

Like amended Rule 702, Maryland Rule 5-702 instructs judges to directly assess the reliability of expert testimony by making several opinion-specific determinations:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.[36]

Subsection (3)’s inquiry into whether a “sufficient factual basis exists to support the expert testimony” requires close inspection of the opinion’s methodology. It “includes two sub-issues: factual basis and methodology.”[37] “[S]ufficient facts must underlie the expert’s opinions that indicate the use of ‘reliable principles and methodology in support of the expert’s conclusions’ so that the opinion constitutes more than mere speculation or conjecture.”[38] Even more recently, the Court of Appeals has explained that an adequate factual basis for expert testimony exists only if the expert (1) has adequate data, and (2) employs a reliable methodology in analyzing that data.[39]

Like the federal courts under Rule 702, Maryland courts applying Rule 5-702(3) reject ipse dixit testimony. “To constitute reliable methodology, an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data” and must have “an adequate theory or rational explanation of how the factual data led to the expert’s conclusion.”[40] “The explanation must not be conclusory, or constitute a ‘because I say so’ approach.”[41]

The Overcomplicated Gatekeeping Inquiry

Enactment of the Maryland Rules of Evidence in 1994—just one year after the Supreme Court’s landmark Daubert opinion—raised many questions about how Maryland’s similarly worded Rule 5-702 would impact Maryland’s Frye-Reed precedent. In this unsettled context, the Rules Committee simply deferred to the Court of Appeals to decide how Rule 5-702 would impact the Frye-Reed standard. As the Court of Appeals explained in Burral:

In adopting our counterpart to Fed. R. Evid. 702, Maryland Rule 5-702, in 1994, we blessed a Committee Note expressly pointing out that promulgation of the Maryland rule was not intended to overrule Reed or other cases adopting the Frye standard, and that “[t]he required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law.”[42]

Courts have largely ignored the committee’s statement that the future of the Frye-Reed standard “is left to development through case law.” The statement invites Maryland’s judiciary to retire Frye-Reed through case law if it recognizes that Rule 5-702, on its own, better ensures reliable expert testimony. But courts have misread the committee’s statement that it did not intend to overrule Frye in 1994 as suggesting that it intended to entrench Frye-Reed as substantive law. If that were so, Frye-Reed’s fate never would have been “left to development through case law.” The committee did not instruct the courts to keep Frye, it left it to the courts to decide whether Frye-Reed remains useful.

Retaining the antiquated Frye-Reed standard is hard to reconcile with the Court of Special Appeals’ statement that Maryland’s “case law is consistent with the [2000] amendments to Rule 702 of the Federal Rules of Evidence.”[43] The 2000 amendments to Rule 702 explicitly incorporated the Daubert trilogy into the rule.[44] Given that it took the Supreme Court almost twenty years to recognize that Frye served no purpose in the federal courts after Rule 702’s enactment, it is perfectly appropriate for Maryland’s courts to decide now that Rule 5-702’s enactment in 1994 warrants retiring the Frye-Reed standard. This “development through case law” is exactly what the committee envisioned.

Confusion from Applying Two Standards.

The Frye-Reed test is confusing alongside Rule 5-702. Judges understand generally that Rule 5-702 did not overrule Frye-Reed and that Maryland remains a Frye-Reed jurisdiction. From there, judicial treatment of expert testimony varies widely as courts struggle to reconcile the demands of Frye-Reed and Rule 5-702. Many judges mistakenly believe that if the Frye-Reed test applies, then the Rule 5-702(3) inquiry is not needed.[45] Some others believe that if an opinion satisfies the “rigid” Frye-Reed test, it would necessarily satisfy Rule 5-702. Neither belief is correct, for four main reasons.

First, scientific opinions are multi-layered and must be reliable at each level. Prof. Faigman separates such opinions into three levels and emphasizes that the “standard for admissibility should account for all three levels” to be “relevant, authentic, and helpful.”[46] At “the top of the abstraction hierarchy,” is the underlying theory or principle that provides authority for the conclusions.[47] It is this most abstract principle that Frye most likely targeted and which nonscientists struggle most to understand.[48] “The second level is ‘the general technique or procedure that produces the data,’” and the third “level is ‘the specific practices used to obtain the data.’”[49]

Second, despite Frye-Reed’s express restriction to opinions that are novel and scientific, Maryland appellate courts have applied it to exclude old techniques and generally accepted techniques.

Consider the trial judge in Clemons v. State: faced with a Frye-Reed challenge to the decades-old technique of Comparative Bullet Lead Analysis (“CBLA”), the trial judge quite reasonably ruled that Frye-Reed was inapplicable because CBLA, despite its problems, certainly was not a “novel” technique.[50] But the Court of Appeals reversed the trial court “hold[ing] that CBLA is not admissible under the Frye-Reed standard because it is not generally accepted within the scientific community as valid and reliable.”[51] The Clemons court did so right after reciting that Reed applies only to “evidence emanating from a novel scientific process.”[52]

To make Frye-Reed fit the case, the Clemons court ignored the novelty prerequisite.[53] Although it mentioned that the CBLA methodology had changed in the late 1980s, the basis of its Frye-Reed ruling was not the new methodology. It was the recent rejection of two long-standing assumptions: (1) “the assumption that an ingot or vat of lead is homogenous as required for CBLA to be valid” and (2) the “assumption that each molten lead source is unique.”[54]

If CBLA opinion testimony had become unreliable and inadmissible, it should have been stricken under Rule 5-702(3) for lacking a sufficient factual basis and stemming from a no-longer-reliable methodology. Although the court reached the right result—CBLA was no longer reliable—the Frye-Reed test was inapplicable. Modern Rule 5-702(3) was much better suited to the task. Adding to the confusion is the fact that the Court of Appeals continued to cite Clemons (among other cases) for the proposition that “Frye–Reed applies only to expert opinion based on new and novel scientific techniques.”[55]

The Court of Special Appeals has also mistakenly applied Frye-Reed to expert opinions on “traditional,” i.e., non-novel, ballistics techniques.[56] The Fleming court held that expert testimony identifying firearms through “comparative microscopic matching” was proper because the “Court of Appeals has approved the admissibility of traditional firearms identification evidence under Frye-Reed.”[57] Dispensing again with the novelty requirement to apply Frye-Reed to expert testimony, the Fleming court explained that “courts have consistently found the traditional method to be generally accepted within the scientific community, and to be reliable.”[58] But Frye-Reed has no application to “traditional” techniques; these should be tested under Rule 5-702 alone.

The Court of Appeals has also used Frye-Reed to preclude opinions derived from a “generally accepted technique.”[59] Specifically, in Wilson v. State, it rejected an expert’s use of the ‘product-rule,” whose underlying “statistical principles … were generally accepted” because one of the underlying factual assumptions—that SIDS had no genetic component—was not generally accepted.[60] In Blackwell, the Court of Appeals aptly summarized Wilson as “address[ing] whether the use of a generally accepted technique required acceptance of conclusions derived from its use” and ultimately standing for the proposition that: “Accepted methodology, then, does not mandate acceptance of conclusions ostensibly developed therefrom.”[61]

In Clemons, Fleming, and Wilson, the testimony should have been considered under Rule 5-702. Although applying Frye-Reed did not necessarily lead to the wrong result in these cases, it created an unnecessary and confusing diversion that not only extended the analysis needed to resolve those cases then but further confuses judges today as they try to apply the Frye-Reed test together with Rule 5-702. Rule 5-702 compels the courts to directly consider an opinion’s factual basis and underlying methodology to decide its reliability. That is what should guide Maryland courts.

The concurring opinion in Savage, authored by Judge Adkins and joined by Chief Judge Barbera and Judge McDonald, explicitly rejects a novelty requirement for the Frye-Reed inquiry explaining that the Court of Appeals has “never held that a scientific method is not subject to Frye-Reed because it is not new.”[62] Judge Adkins explains that the Court of Appeals (1) has “liberally applied the Frye-Reed analysis to testimony based on any scientific principle—new or old” and (2) has “suggested that all testimony based on scientific techniques is subject to Frye-Reed … rather than skipping Frye-Reed because the method is not novel.”[63]

Third, applying Frye-Reed, even when it is inapplicable, carries a real cost because courts that do so often fail to analyze the challenged expert opinion under Rule 5-702. Because Rule 5-702 not only has a much broader scope than Frye-Reed but also requires direct examination of the factual basis and methodology of the opinions, its omission can change the outcome of the expert analysis. For example, in Owens Corning v. Bauman, the Court of Special Appeals deliberated on whether Frye-Reed applied to the expert physician’s testimony regarding when the plaintiff’s lung cancer likely developed.[64] The court explained at length why Frye-Reed did not apply to the physician’s testimony but said virtually nothing about why the challenged testimony had a sufficient factual basis or was the reliable product of a sound methodology under Rule 5-702(3).[65] That is the inquiry that an appellate court should be making when expert testimony is challenged.

Misapplying Frye-Reed and ignoring Rule 5-702 is inefficient. In N.B.S., Inc. v. Harvey, the trial court barred an expert’s opinion under Frye-Reed, prompting an appeal under Frye-Reed.[66] The Court of Special Appeals agreed that the expert testimony was inadmissible, but it held that the exclusion should have been framed as a Rule 5-702(3) problem because the expert lacked a sufficient factual basis.[67]

Even before the modern rules of evidence on expert testimony were enacted, legal scholars recognized that “[p]erhaps the most important flaw in the Frye test is that by focusing attention on the general acceptance issue, the test obscures critical problems in the use of a particular technique.”[68] This flaw appears in the criminal courts, where the reliability of opinions based on forensic evidence can have life-altering consequences. In Armstead v. State, the Court of Appeals analyzed at length whether Frye-Reed still applied to DNA testing after the Legislature had enacted a statute declaring such evidence admissible.[69] It ultimately held that it did not. But Judge Bell’s dissenting opinion pointed out that, in its analysis of the admissibility of DNA evidence, the “majority makes no mention of Rule 5–702.”[70] The failure to address challenged evidence under Rule 5-702 in serious criminal cases is worrisome. Courts should be focused exclusively on the proper, modern test that directly tests an opinion’s reliability.

Fourth, Frye-Reed’s relevance to medical opinions is especially difficult to discern under existing case law. Some Maryland precedents strongly suggest that Frye-Reed does not apply to medical diagnoses.[71] Other cases hold the exact opposite.[72]

In Myers v. Celotex Corp., which preceded Rule 5-702’s enactment, the Court of Special Appeals reversed the trial court’s exclusion, under Frye-Reed, of a physician’s novel and not generally accepted theory on how asbestos causes cancer.[73] His testimony on how asbestos caused cancer was important—despite the consensus that inhaled asbestos fibers do cause cancer—because he “testified in some detail how he could determine whether various cancer cells were more likely to have resulted from asbestos than from smoking.”[74] Specifically, he postulated a novel cattle-prod theory, i.e., that asbestos fibers carried an electric charge that allowed them to strike a certain chromosomal gene after piercing an epithelial cell and cause cancer.[75] The court showed extraordinary deference to this “medical diagnosis,” despite widespread rejection of the cattle-prod theory, on the grounds the opinion “was based upon Dr. Schepers’s personal observations and professional experience.”[76]

Applying Myers in its CSX v. Miller opinion, the Court of Special Appeals stressed that Frye-Reed is limited to novel scientific techniques and the “Frye-Reed test has absolutely nothing to do with the conclusions of Miller’s doctors” regarding “the etiology of his osteoarthritis.”[77]

The Myers court’s acceptance of the cattle-prod theory as admissible medical expert testimony based on “personal observations and professional experience,” cannot be reconciled with the Court of Appeals’ subsequent Chesson opinion. The trial court in Chesson had accepted the challenged testimony as a medical diagnosis, not subject to Frye-Reed, and the Court of Special Appeals affirmed, noting that the tests that the challenged experts used were generally accepted, under the rationale of both Myers and Miller.[78] But the Court of Appeals reversed, ordering a Frye-Reed hearing on remand “to decide whether the doctor’s methodologies used for diagnosis and theories regarding the causal connection between mold exposure and certain human health effects are generally accepted in the scientific community for that purpose.”[79]

Post-Chesson opinions—with increasing emphasis—continue to find Frye-Reed scrutiny appropriate for medical expert opinions. The Blackwell opinion affirmed the application of Frye-Reed to reject the differential diagnosis of a physician, who testified that the defendant’s vaccine caused the plaintiff’s autism.[80] In doing so, it described Chesson broadly as “recognizing that the tests utilized, as well as the results and theory, must be subjected to Frye-Reed scrutiny.”[81] The Court of Appeals’ 2015 decision in Roy v. Dackman further characterized the Blackwell opinion as “explain[ing] that the Frye/Reed analysis was necessary for medical testimony in order to avoid the pitfalls of an analytical gap.”[82] And the Savage opinion approvingly quoted the Court of Special Appeals’ statement that “[t]he notion that medical opinion testimony is categorically immune from a Frye–Reed challenge is no longer the law in Maryland, if, indeed, it ever was.”[83]

How Maryland Courts Are Already Using the Daubert Factors

Despite Maryland’s reluctance to formally retire Frye-Reed or adopt Daubert as part of the Rule 5-702 analysis, Daubert has already changed Maryland law. Blackwell v. Wyeth, in particular, leans heavily on the Daubert trilogy as instructive and helpful to Maryland courts tasked with ruling on the reliability and admissibility of complex scientific expert testimony.[84] The Blackwell opinion tightly embraces the rationale of the Supreme Court’s Joiner opinion and its rejection of expert opinions with an “analytical gap.”[85] It also adopts Daubert’s gatekeeping metaphor as Maryland law stating that Maryland’s Frye-Reed “jurisprudence engages trial judges in a serious gate-keeping function, to differentiate serious science from ‘junk science.’”[86]

So striking is Blackwell’s reliance on Daubert that some commentators treat the decision as Maryland’s de facto adoption of Daubert.[87] Others see Daubert as transforming even those jurisdictions that do not formally adopt it because even Frye courts now directly scrutinize opinions “when considering the reliability of scientific evidence.”[88] That aptly describes the Blackwell opinion and bolsters the authors’ recommendation that “state courts should consider uniformly adopting Daubert.”[89]

The Court of Special Appeals—while also not explicitly adopting Daubert—has cited Blackwell for the proposition that the Court of Appeals “consider[s] federal Daubert inquiries to be instructive, although certainly not dispositive, for purposes of admissibility in Maryland.”[90] And, in 2000, it stated that “the Daubert test for admissibility of expert testimony” is “helpful” when ruling on expert testimony.[91]

Citing many of these same authorities, the Savage concurrence explicitly calls for Maryland’s adoption of Daubert: “we should follow the majority of states and acknowledge our implicit adoption of Daubert. I would do away with Frye–Reed and hold that the Daubert factors used to interpret FRE 702 are persuasive in interpreting Rule 5–702.”[92]

The Benefits of Retiring Frye-Reed

Retiring Frye-Reed would free judges from a slew of time-consuming and often irrelevant inquiries and re-focus them on what matters: is the expert’s opinion reliable? For example, the Frye-Reed inquiry requires the judge to first ensure that the opinion is truly “novel” or “scientific.” This is no small matter: in Schultz v. State, the Court of Special Appeals spent 11 pages analyzing whether the HGN test is “scientific.”[93] Frye courts also waste time defining a “relevant scientific community.” Such efforts are not necessary or even helpful if 5-702 is correctly applied, and jumping through these preliminary hoops often prompts judges to perform a cursory Frye review, “examining only the general acceptance of an expert’s overarching methodology and not also whether that methodology was used in the particular case in a generally accepted way.”[94] Because the reliability of an expert’s testimony matters most, Daubert is the proper test and what the Court of Appeals already turns to for guidance “when [courts] are speaking about reliability.”[95]

Evidence law regarding expert testimony has undergone a revolution since the Court of Appeals adopted the Frye standard in 1978. Then, the general-acceptance test had “come to be the standard in almost all of the courts in the country which have considered the question of the admissibility of scientific evidence.”[96] Since then, most jurisdictions have abandoned the Frye test and now directly assess an opinion’s reliability.[97] In 2016, the District of Columbia retired Frye and adopted Daubert.[98] Given the modern trend that “cases presenting significant science-related issues have increased in number,” it is only proper that courts adopt a modern standard to ensure reliable expert testimony.[99]

The Frye-Reed standard—imperfect from its inception—has lost all utility now that modern Rule 5-702 and Daubert case law can guide courts.[100] A scholar’s observation that “case law under Frye is in chaos with Frye jurisdictions often looking to federal Daubert precedents as guidance” fairly describes current Maryland law.[101] Retiring Frye-Reed and adopting Daubert would resolve this legal chaos.

First, Frye-Reed was supposed to limit expert testimony; it was “deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles.”[102] Maryland retained Frye-Reed, in part, to preserve its high standards for expert testimony.[103] Frye-Reed has failed in its essential purpose.

Judge Grimm is among the many judges and commentators who have noted the “unmistakable irony” that the liberal Daubert approach that directly examines the reliability of an expert opinion has, in practice, proved itself a greater barrier for paid experts than the supposedly “rigid” and “austere” general-acceptance test.[104] This is because the Daubert standard—like Rule 5-702(3)—“expose [s] evidentiary weaknesses that otherwise would be overlooked if [the court] follow[s] the dictates of Frye.”[105] In short, Rule 5-702 and Daubert provide a superior standard for ensuring reliable expert testimony. Maryland should not remain a jurisdiction that is “stretching Frye beyond its original boundaries in a struggle to keep up with Supreme Court precedents.”[106] Maryland should adopt Daubert as a guide for Rule 5-702(3) inquiries—not because it is the stricter test, but because it is the better test.

Second, the austere rigidity of Frye-Reed test often improperly excludes reliable evidence while admitting unreliable evidence.[107] Frye is misperceived as a tougher standard because it excludes novel but valid opinions that Daubert would admit.”[108] The Reed dissent noted that, under Frye, courts in 1663 would have barred Galileo’s novel opinion that the earth is not the fixed center of the universe but revolves around the sun.[109] But Frye admits evidence that Daubert would exclude if it “has only a weak scientific foundation and yet enjoys general acceptance within its field.”[110] “In this situation the Frye test is not conservative at all, but downright radical.”[111]

Maryland can ill afford to continue using a “downright radical” rule of evidence regarding expert testimony. Commentators explain that “ensuring the reliability of expert evidence is particularly important in products liability and toxic tort cases, where the economic stakes to the parties and to society are extremely high.”[112] An unreliable, indirect test for the admission of expert testimony enhances “the risk of driving safe products and substances—the Bendectin example [in Daubert] comes to mind—off the market.”[113] Defendants, plaintiffs, and society as a whole benefit most when the courts apply the test that best ensures the reliability of expert testimony. For the reasons stated here, Rule 5‑702 and Daubert accomplish directly, efficiently, and plainly better than what Frye-Reed accomplishes indirectly. Forcing courts to apply Frye-Reed does more harm than good. It is time for Frye-Reed to go.


[1] (applying Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), as adopted by Reed v. State, 283 Md. 374, 391 A.2d 364 (1978)). The criminal defendant in Savage proffered a neuropsychology expert to opine that his testing showed that Mr. Savage’s brain trauma from a prior gunshot wound left him in an abnormally hyper-vigilant state, where he was “more likely to perceive himself to be facing an imminent threat and have greater difficulty controlling his reaction.” Id. at *5. The neuropsychologist’s credentials and methods were neither invalid nor novel.

[2] Reed, 283 Md. at 381 (emphasis added).

[3] Michael J. Saks, Merlin and Solomon: Lessons from the Law’s Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069, 1073 (1998) (“Saks”).

[4] Id. at 1074.

[5] See David L. Faigman, Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799, 1805 (1994) (“Faigman”).

[6] Id.

[7] Id.

[8] See id.

[9] 293 F. 1013 (D.C. Cir. 1923).

[10] Faigman, 15 Cardozo L. Rev. at 1806.

[11] See id. at 1807.

[12] Saks, 49 Hastings L.J. at 1076.

[13] David E. Bernstein, Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test, 41 Jurimetrics J. 385, 388 n.28 (2001) (“Bernstein”).

[14] Faigman, 15 Cardozo L. Rev. at 1808.

[15] Reed v. State, 283 Md. 374, 400-01, 391 A.2d 364 (1978) (Smith, J., dissenting).

[16] Id. at 381 (majority op.); id. at 406-07 (Smith, J., dissenting).

[17] Id. at 406-07.

[18] Id. at 380; see also Burral v. State, 352 Md. 707, 708, 724 A.2d 65 (1999) (calling Frye-Reed standard “the test of reliability”).

[19] Reed, 283 Md. at 381 (emphasis added).

[20] Id.

[21] F.R.E. 702.

[22] Saks, 49 Hastings L.J. at 1076 n.37 (noting that the federal circuits split 7-2 in favor of Frye being incorporated into FRE 702).

[23] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).

[24] Id. at 597.

[25] Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).

[26] Id. at 138-39, 146.

[27] Id. at 146.

[28] Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

[29] Id. at 141.

[30] Id. at 142.

[31] Id. at 141-42.

[32] Id. at 152.

[33] F.R.E. 702.

[34] Burral v. State, 352 Md. 707, 717, 724 A.2d 65 (1999).

[35] Wood v. Toyota Motor Corp., 134 Md. App. 512, 523 n.13, 760 A.2d 315 (2000).

[36] Md. R. 5-702.

[37] Exxon Mobil Corp. v. Ford, 433 Md. 426, 478, 71 A.3d 105, as supplemented on denial of reconsideration, 433 Md. 493, 71 A.3d 144 (2013).

[38] Id.

[39] Roy v. Dackman, 445 Md. 23, 42-43, 124 A.3d 169 (2015), reconsideration granted (Nov. 24, 2015).

[40] Exxon, 433 Md. at 481 (omitting internal quotation marks).

[41] Id.

[42] Burral v. State, 352 Md. 707, 737-38, 724 A.2d 65 (1999).

[43] Wood v. Toyota Motor Corp., 134 Md. App. 512, 523 n.13, 760 A.2d 315 (2000).

[44] See F.R.E. 702.

[45] See Blackwell v. Wyeth, 408 Md. 575, 618-21 (2009) (applying Frye-Reed but not subsection 5‑702(3)).

[46] Faigman, 15 Cardozo L. Rev. at 1827.

[47] Id. at 1825.

[48] Id.

[49] Id. at 1826.

[50] Clemons v. State, 392 Md. 339, 351-52, 896 A.2d 1059 (2006).

[51] Id. at 358-59.

[52] Id. (emphasis added).

[53] Blackwell, 408 Md. at 589 (summarizing Clemons as rejecting an expert opinion that was “no longer” accepted).

[54] 392 Md. at 368.

[55] Exxon Mobil Corp. v. Albright, 433 Md. 303, 416, 71 A.3d 30, on reconsideration in part, 433 Md. 502, 71 A.3d 150 (2013) (emphasis added).

[56] Fleming v. State, 194 Md. App. 76, 101, 1 A.3d 572 (2010).

[57] 194 Md. App. at 106-07.

[58] Id. at 107.

[59] Wilson v. State, 370 Md. 191, 206-09, 803 A.2d 1034 (2002).

[60] Id.

[61] Blackwell, 408 Md. at 588-89.

[62] Savage v. State, No. 82, SEPT. TERM, 2016, 2017 WL 3317896, at *22 n.5 (Md. Aug. 4, 2017).

[63] Id. at *22;

[64] 125 Md. App. 454, 497–502, 726 A.2d 745 (1999), as modified on clarification (Apr. 7, 1999) abrogated on other grounds by John Crane, Inc. v. Scribner, 369 Md. 369, 800 A.2d 727 (2002).

[65] See id.

[66] 121 Md. App. 334, 338, 709 A.2d 162 (1998).

[67] See id.

[68] Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1226 (1980) (“Giannelli”).

[69] Armstead v. State, 342 Md. 38, 56-67, 673 A.2d 221 (1996).

[70] Id. at 100 (Bell, J. dissenting).

[71] CSX Transp., Inc. v. Miller, 159 Md. App. 123, 186-87, 858 A.2d 1025 (2004); Myers v. Celotex Corp., 88 Md. App. 442, 458, 594 A.2d 1248 (1991).

[72] Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 322-25, 923 A.2d 939 (2007); Blackwell v. Wyeth, 408 Md. 575, 617-18, 971 A.2d 235 (2009).

[73] 88 Md. App. 442, 455-56, 594 A.2d 1248 (1991).

[74] Id.

[75] Id. at 456.

[76] Id. at 458.

[77] CSX Transp., Inc. v. Miller, 159 Md. App. 123, 186-87, 858 A.2d 1025 (2004).

[78] Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 322-25, 923 A.2d 939 (2007).

[79] Id. at 318.

[80] Blackwell v. Wyeth, 408 Md. 575, 617-18, 971 A.2d 235 (2009).

[81] Id. at 590 (emphasis added).

[82] 445 Md. 23, n.2, 124 A.3d 169 (2015) (emphasis added) (omitting internal quotation marks), reconsideration granted (Nov. 24, 2015).

[83] Savage v. State, No. 82, SEPT. TERM, 2016, 2017 WL 3317896, at *8 (Md. Aug. 4, 2017).

[84] 408 Md. at 604-05.

[85] Id. at 608.

[86] Id. at 591.

[87] See Comment, Nancy E. Bonifant, Blackwell v. Wyeth: It’s Our Courtroom and We’ll Frye (Only) If We Want to-the Maryland Court of Appeals’s Unstated Adoption of Daubert, 69 Md. L. Rev. 719 (2010).

[88] Edward K. Cheng et al., Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471, 503 (2005).

[89] Id.

[90] Fleming v. State, 194 Md. App. 76, 108 n.4, 1 A.3d 572, 591 (2010).

[91] Wood v. Toyota Motor Corp., 134 Md. App. 512, 526, 760 A.2d 315 (2000).

[92] Savage v. State, No. 82, SEPT. TERM, 2016, 2017 WL 3317896, at *25 (Md. Aug. 4, 2017) (concurring).

[93] 106 Md. App. 145, 154-165, 664 A.2d 60 (1995).

[94] David E. Bernstein & Jeffrey D. Jackson, The Daubert Trilogy in the States, 44 Jurimetrics J. 351, 353 (2004).

[95] See Blackwell, 408 Md. at 604-05.

[96] Reed, 283 Md. at 382.

[97] See, e.g., 29 Fed. Prac. & Proc. Evid. § 6267 n.15 (2d ed.) https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/; https://jurilytics.com/50-state-overview (identifying eight states as pure Frye states and 23 as pure Daubert).

[98] Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016).

[99] See Joiner, 522 U.S. at 148-49 (Breyer, J., concurring).

[100] See Bernstein, 41 Jurimetrics J. at 407.

[101] See id.; Blackwell, 408 Md. at 604-08.

[102] See Reed, 283 Md. at 385-86.

[103] See Keene Corp. v. Hall, 96 Md. App. 644, 656 n.2, 626 A.2d 997 (1993).

[104] United States v. Horn, 185 F. Supp. 2d 530, 553 (D. Md. 2002).

[105] Id.

[106] Bernstein, 41 Jurimetrics J. at 404.

[107] Giannelli, 80 Colum. L. Rev. at 1223.

[108] Saks, 49 Hastings L.J. at 1078.

[109] Reed v. State, 283 Md. at 426 n.9 (Smith, J., dissenting).

[110] Faigman, 49 Hastings L.J. at 1078.

[111] Id.

[112]Bernstein, 41 Jurimetrics J. at 396.

[113] Id.

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