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Until 15 years ago, Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), dominated the landscape of scientific evidence in the United States. Frye announced that before a proponent could elicit scientific testimony, the proponent had to demonstrate that the expert based his or her opinion on a “generally accepted” theory or technique. Frye was the overwhelming majority view in the United States. 1 Giannelli et al., Scientific Evidence 1-5 (3d ed. 1999). The courts which followed Frye often championed the general-acceptance test as “an essentially conservative” standard designed to compensate for lay jurors’ supposed tendency to overvalue expert testimony. People v. Kelly, 549 P.2d 1240, 1244-45 (Calif. 1976). If the typical juror was likely to place so much faith in scientific testimony, the courts should cautiously and admit only testimony based on “tried and true” scientific theories. Although the test was touted as a rigorous standard, in many, if not most, Frye jurisdictions the courts limited the scope or reach of the test. In particular, many refused to apply Frye to “soft” science such as medical or psychological testimony. California is a case in point. California courts staunch supporters of ‘Frye’ The California courts have been some of the staunchest supports of Frye. People v. Leahy, 882 P.2d 321 (Calif. 1994) (reaffirming the court’s adherence to Frye after the U.S. Supreme Court’s decision in Daubert). Yet in People v. McDonald, 690 P.2d 709 (Calif. 1991), the same California Supreme Court that enthusiastically embraced Frye balked at applying the test to psychological testimony about the asserted unreliability of eyewitness testimony. The McDonald court noted that in the past, it had never extended the test to medical or psychological expertise. The court explained that it had adopted Frye largely because the court feared that lay jurors frequently ascribe undue weight to expert testimony. However, the court added that that fear is ordinarily acute only when the testimony is “produced by a machine.” 690 P.2d at 724. Scientific instruments are the epitome of the black box which, according to the court, can mystify ordinary jurors. California is not the only jurisdiction to recognize this limitation on the scope of Frye. According to one commentator, a majority of Frye states have fashioned similar exemptions for scientific evidence. Hanson, James Alphonzo, ” ‘Frye’ is Sixty-Five Years Old; Should He Retire?,” 16 W. St. U. L. Rev. 357, 408, 411 (1989). The questions naturally arise: Should there be such an exemption, and is there a similar exemption in the new regime of Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993)? There are different schools of thought on this question. One view is that there not only should not be an exemption but there should be special, severe restrictions on the admissibility of soft scientific testimony. A classic statement of that view is Judge David Bazelon’s opinion in Washington v. U.S., 390 F.2d 444 (D.C. Cir. 1967). Frankly, Bazelon had been underimpressed by the quality of the psychiatric and psychological testimony he had seen in the insanity cases he had been exposed to. He wrote: “[I]t may be that psychiatry and other social and behavioral sciences cannot provide sufficient data relevant to a determination of criminal responsibility no matter what the rules of evidence are. If so, we may be forced to eliminate the insanity defense altogether or re-fashion it in a way which is not tied so tightly to the medical model.” Id. at 457 n. 33. This view gained few adherents. However, these criticisms have persuaded many legislatures to prescribe restrictions on psychiatric and psychological testimony. Congress did so in part as backlash against the acquittal of John Hinckley, the attempted assassin of President Reagan. Fed. R. Evid. 704(b). Several states have done likewise. An implicit, underlying assumption of this view is that soft scientific expertise lacks the reliability of the opinions attainable in hard scientific disciplines such as physics and chemistry. If soft science fares so poorly in comparison, perhaps soft scientific expertise ought to be subjected to more severe restrictions. The rub, though, is the assumption is simplistic; it overstates the differences between the so-called soft and hard sciences. See Faigman, “To Have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy,” 38 Emory L.J. 1005 (1989). Many of the amicus briefs filed in Daubert attempted to educate the court that even in fields such as physics, there is an inevitable uncertainty. There are limits to science’s inductive logic: Another experiment testing the theory is always conceivable; and so long as that possibility exists, a theory cannot be accepted as conclusively proven. Those amicus briefs led Justice Harry Blackmun to write that “arguably, there are no certainties in science.” Daubert at 590. The second school of thought is the polar extreme view that soft scientific testimony should be more liberally admissible than hard scientific evidence; at least soft science should not be subjected to the same type or degree of scrutiny. In effect, the courts that exempt soft science from Frye have endorsed this view. If soft science does not have to run the gauntlet of the general-acceptance test, the trial judge is limited to inquiring whether the witness qualifies as an expert and whether the subject matter is esoteric enough that lay jurors might benefit from a qualified expert’s insight. However, those inquiries end the analysis; there is no further probing into the theories and techniques employed by the expert. Even if the first school of thought rests on a flawed assumption, it is fallacious to leap to the conclusion that the polar extreme view is correct. There are legitimate concerns about the trustworthiness of soft scientific testimony. Ennis & Litwack, “Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom,” 62 Cal. L. Rev. 693 (1974). It seems irresponsible to give soft scientific testimony a “pass” and admit it without scrutinizing the expert’s theories and methodology. This reasoning has led to the emergence of a third school of thought. In 1993, the U.S. Supreme Court handed down its decision in Daubert. In 1999, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the court clarified the scope of Daubert and made it clear that the foundation for any proffered expert testimony must include a showing of the reliability of the expert’s reasoning. Whether the witness’s expertise is soft or hard, the witness must present more than subjective speculation and ipse dixit. Blackmun’s definition of science in Daubert is so broad and Kumho’s mandate is so explicit that the lower courts have almost uniformly concluded that soft expertise no longer enjoys the exemption that it previously had in many Frye jurisdictions. Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000); Gier by and through Gier v. Educational Serv. Unit, No. 16, 66 F.3d 940 (8th Cir. 1995); U.S. v. Amador-Galvan, 9 F.3d 1414 (9th Cir. 1993); “Comment, Admissibility of Expert Psychological Evidence in the Federal Courts,” 27 Ariz. St. L.J. 1315 (1995). Under the third school of thought, there are two critical questions: What must be validated, and how can it be validated? The answer to the first question is that the expert must demonstrate the reliability of the specific theory or technique he or she contemplates relying on. In Daubert, Blackmun emphasized that the expert must be competent to perform the specific “task at hand.” In Kumho, Justice Stephen G. Breyer pointed out that the question was “not the reasonableness in general of a tire expert’s use of a visual and tactile inspection to determine” the existence of a design defect. 526 U.S. at 153-54. Rather, the issue was the reliability of the “particular” methodology the expert had utilized. Id. at 154. In the justice’s words, “the question before the trial court was specific, not general.” Id. at 156. Thus, an expert in a soft discipline does not have to establish the “global” validity of his or her field. Risinger, “Defining the ‘Task at Hand’: Non-Science Forensic Science After Kumho Tire Co. v. Carmichael,” 57 Wash. & Lee L. Rev. 767, 773 (2000). As ‘Kumho’ recognized, no square pegs in round holes The answer to the second question is challenging. As Kumho recognized, you cannot fit square pegs in round holes. Obviously, in most cases soft scientists cannot use the same validation techniques employed in physics; and in the typical case, they will be unable to validate their theories or methodologies with the same precision as physicists. Yet, the difficulty of the challenge is no excuse for abandoning all efforts at objective validation. A psychologist may not be able to resort to a gas chromatograph/mass spectrograph (GC/MS) to establish the validity of a generalization about the victims of child sexual abuse or rape. However, in the scientific tradition, having formulated his or her hypothesis, the psychologist can: study a large, representative sample of subjects; carefully record data about the subjects; and employ statistical techniques to determine whether the data bears out the specific opinion the psychologist is prepared to testify to. In Part II of this column, we shall employ this straightforward approach to evaluate the admissibility of various opinions based on soft science “syndrome” theories. We can and should ask more of soft scientific experts than we have done in the past in many Frye jurisdictions. Before the American Psychiatric Association released the fourth edition of its bible, the Diagnostic and Statistical Manual, the APA went to great lengths to verify the reliability of its diagnostic criteria. The APA subjected the criteria to field trials involving more than 7,000 subjects at 88 universities and research institutions. The APA read the Daubert handwriting on the wall. Part II will elaborate on the implications of that handwriting. Edward J. Imwinkelried is the Edward L. Barrett Jr. professor of law at the University of California, Davis. He can be reached at [email protected].

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