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长风落日

One of the first Burden of Proof columns [FN1] was an overview of expert witness practice in New York state courts, a topic worthy of greater attention in several respects. One of those areas is the topic of this column, and the next: challenges to the admissibility of expert testimony at trial based upon the technical or scientific basis of, and the methodology utilized by, the proffered expert. Litigating in this area requires understanding the development of, and tensions between, the Frye [FN2] (this column) and Daubert [FN3] (next column) standards, and their application by the courts of this state. The original column cautioned "[t]his is an evolving area, and practitioners are advised to pay close attention to new cases in this area, particularly any Appellate Division pronouncements." If I must say so myself, good advice -- then, now, and for the foreseeable future.
Frye and Daubert provide a framework for trial judges in deciding whether expert testimony is to be permitted and, if the expert is permitted to testify, whether to limit the scope of the expert's testimony. Frye's "general acceptance" test reigned in New York courts and in federal courts from 1923 to 1993. However, in 1993 the United States Supreme Court decided Daubert, holding that Federal Rule of Evidence 702 superceded Frye. Thereafter, in federal court, Frye was replaced with Daubert. The role of federal judges in determining whether a jury should hear a particular expert's testimony was re-cast, with the judge acting as "gatekeeper." General acceptance as a measure of reliability, while still a factor to be considered, was no longer the sole, or even key, test. More on Daubert next issue. For now, back to Frye.
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