In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He’s Declared An Expert, attorney Anthony Colleluori writes on what he calls “the lack of attack on prosecution experts” in criminal trials that involve IME expert witnesses and police personnel.
I. Preparing the attack.
A. Frye or Daubert?
The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony. Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the Frye test(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the Daubert test(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.
Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the “soundness” of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).
Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.
Excerpted from Long Island (Criminal) Trial Law.