Update: The End of Frye-Reed Draws Closer

By Derek Stikeleather

In my lengthy October 2017 post, The End of Frye-Reed, I traced the history of Maryland’s Frye-Reed jurisprudence on expert testimony and explained my view that Frye-Reed is now “on its last legs.” A recent published Court of Special Appeals opinion, Sissoko v. State,[1] suggests that Frye-Reed’s death has drawn even closer. It notes Maryland’s “drift” towards applying Frye-Reed to scientific conclusions, rather than only techniques, and treats the Frye-Reed and Rule 5-702 inquiries as tests that not only “overlap” but perhaps have even “melded into one.”[2] In doing so, the opinion elevates, from well-considered dicta to controlling Maryland law, many points in the concurring opinion in the Court of Appeals’ August 2017 decision Savage v. State.[3]

The analysis in my original post ended with Savage v. State, which is proving itself to be a landmark opinion. It held that the Frye-Reed inquiry looks for an “analytical gap” and applies even when the court assumes that the challenged expert’s methodology is generally accepted.[4] This is remarkable because (1) the “analytical gap” comes from Daubert case law[5] and is part of the Rule 5-702 inquiry and (2) establishing general acceptance of an expert’s methodology traditionally marked the end of the Frye-Reed inquiry—not a starting presumption. The Savage opinion also stood out by rejecting the oft-made arguments that the Frye-Reed inquiry does not apply to medical opinions.[6]

Even more remarkable was the three-judge concurrence in Savage, which recommended dropping the Frye-Reed standard altogether and adopting the federal Daubert standard, as many other states have already done. Authored by Judge Adkins and joined by Chief Judge Barbera and Judge McDonald, the Savage concurrence explicitly rejected 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.”[7] Judge Adkins explained 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.”[8]

The new panel opinion, Sissoko v. State, shows just how influential the analysis in the Savage concurrence is, as it elevates much of it to Maryland law. Authored by Judge Deborah Eyler, joined by Judges Kehoe and Arthur, the Sissoko opinion affirms the murder conviction of a man who killed his infant son and challenged the admission of expert testimony against him under Frye-Reed. Running 66 pages long, the opinion copiously details the science behind diagnosing shaken-baby syndrome before similarly detailing the evolution of Maryland’s Frye-Reed jurisprudence and its relationship to Maryland Rule 5-702(3). In doing so, it cites the Savage concurrence eight times.

A few points are worth highlighting. First, the Sissoko opinion rejects the argument that Frye-Reed did not apply to the challenged expert opinions because the arguments were merely case-specific and did not challenge the general reliability of any underlying methodologies. Instead, the opinion embraces the Savage concurrence’s position that, given the last decade of expansion of the Frye-Reed test to allow examination of non-novel methods and conclusions drawn from reliable methods, Frye-Reed and Rule 5-702(3) now “overlap.”[9]

This “overlap” should hasten Frye-Reed’s demise. The Sissoko opinion explained that the Court of Appeals, when adopting the Frye standard, treated the common-law predecessor to Rule 5-702(3) as a case-specific inquiry while treating Frye–Reed as concerned with the general reliability of a scientific method in any case. That is no longer the case in Maryland. The Sissoko opinion correctly notes that with “the evolution of Frye-Reed to include scientific analysis, perhaps the two [inquiries] are melded into one.”[10] And, if a black-letter Rules-based inquiry and an inquiry fashioned from complex and evolving case law are now essentially the same, it is the Rule that should prevail.

Second, the Sissoko opinion cabins two older opinions that are repeatedly and incorrectly cited for the proposition that Frye-Reed does not apply to medical diagnoses: CSX Transp., Inc. v. Miller[11] and Myers v. Celotex Corp.[12] Although other Maryland appellate opinions have stretched to distinguish these cases, the Sissoko panel candidly holds that Miller and Myers were decided under a narrow Frye-Reed standard that, given the last decade of Frye-Reed jurisprudence, no longer applies.[13]

The Savage opinion was already important when it was handed down. But the Sissoko opinion has strengthened Savage by making many of the points from the concurring opinion precedential Maryland law. By recognizing that Frye-Reed and Rule 5-702 may have “melded into one” standard, it has hastened the demise of Frye-Reed and brought Maryland even closer to a Daubert-like standard.

[1] Sissoko v. State, No. 613, SEPT. TERM, 2016, — A.3d —, 2018 WL 1768685 (Md. Ct. Spec. App. Apr. 9, 2018). The opinion is a re-issued version of a prior (vacated) opinion and is currently designated for publication.

[2] Id. at *21-22.

[3] Savage v. State, 455 Md. 138, 166 A.3d 183 (2017).

[4] Id. at 160.

[5] General Electric Co. v. Joiner, 522 U.S. 136 (1997).

[6] Savage, 455 Md. at 153.

[7] Id. at 179 n.5 (Adkins, C.J. Barbera, McDonald, J.J., concurring).

[8] Id. at 180.

[9] Sissoko, 2018 WL 1768685, at *20.

[10] Id. at *22.

[11] 159 Md. App. 123, 186-87, 858 A.2d 1025 (2004).

[12] 88 Md. App. 442, 458, 594 A.2d 1248 (1991).

[13] Sissoko, 2018 WL 1768685, at *21.