Frye vs. Daubert: Modern Standards Forensic Engineering Testimony

Our role as an experienced forensic engineering firm dealing in everything from cathodic protection to forensic electrical engineering often means we at Dreiym have to occasionally provide expert testimony.

Legal challenges about how a fire began at an industrial complex or whether or not a building had proper arc flash protection are crucial to assigning financial responsibility for repairs and compensation. We help uncover those truths by analyzing the root cause of so many incidents and helping juries, legal entities, and businesses better understand what should have been in place to prevent such damage.

The trick is there are different admissibility standards to determine whether or not a forensic engineer’s findings can be presented. It is these standards that shape current litigation as well as the industry standard practices of firms like ours. Two such legal precedents include Daubert and Frye.

A Quick History: Daubert vs. Frye

The primary goal of Daubert and Frye is to prevent a form of framework for evaluating expert testimony. Courts want to ensure they are receiving proper evidentiary information that can be used to make decisions and sway juries.

Prior to 1923, courts would look more at the credentials of an expert witness and their relevant experience in the field. For example, if a medical provider was testifying about a malpractice suit, the court would consider where they received training, their area of specialty, and how many years they’ve practiced.

While these elements are still brought up by attorneys, it wasn’t until 1923 that the Frye standard was established and as late as 1993 for the Daubert standard. These standards are set in stone via case precedent.

Without Daubert vs. Frye, forensic engineers wouldn’t have the nuance to navigate the legal landscape. Through this lens, we are better able to provide scientifically accurate, equally legally admissible information.

Background on Frye and Daubert Standards

The Frye Standard

Frye standard comes from a 1923 case known as Frye v. United States. It is here the courts first established that scientific evidence is only admissible as long as the methodologies utilized or underlying principles are “generally accepted” by industry/scientific communities. You can think of a “Frye Challenge” as someone stating the concept is not “generally accepted.”

Put another way, the evidential force of the methods used must be accepted by consensus. It is like a peer-reviewed study in which everyone reading the information presented in a journal agrees that it “carries weight.”

The upside is you get measurable techniques for presenting information to a court. The downside is if you have a new method for testing or providing data, you will face legal challenges. This is why the Frye Standard wasn’t really accepted until the 1970s and began facing criticisms of being too vague in the 1980s.

There are a number of states that rely on the Frye Standard due to their trust in precedent and tradition. In other areas, courts rely more on the Daubert Standard.

The Daubert Standard

Unlike the Frye Standard, which relies on consensus, the Daubert Standard gives judges more “wiggle room” to decide admissibility. Daubert comes from a 1993 Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc. During this case, justices chose to introduce a new framework for expert testimony in federal courts – emphasizing scientific rigor and judicial oversight.

Daubert was later expanded in 1997 via General Electric Co v. Joiner, 522 U.S. 136, finding that “conclusion and methodology are not entirely distinct from another.” The idea is to give judges a “gatekeeper” role so they can evaluate if an expert’s methodology is reliable and relevant to the case at hand. Several criteria have to be met, including:

• Can the methodology being presented be tested (in a reliable way)?
• Have the methods presented or testimony procedures been subject to peer review or scrutiny?
• Is there some measurable form of error in the methodologies?
• Do the methods being used have standards and controls?
• Is the technique accepted within the given industry or scientific industry?

What is beneficial about the Daubert Standard is you get a lot more flexibility. It allows forensic engineering firms to introduce novel or innovative techniques, as long as they meet those outlined parameters. We can present exhaustive documentation and processes to ensure findings are supported and will be admissible.

However, it is also just as common to receive a “Daubert Challenge.” Here, the opposing counsel will question the admissibility of the testimony, and it is up to the expert to present and validate the methods used. The clearer the science (relayed in an accepted form of communication), the likelier it is to hold up in court.

Federal courts and most states now rely on the Daubert Standard as it is a good mix of both science and peer-reviewed input.

Key Differences

Whenever a team like ours has to present expert testimony, we always look at the state or federal history. We need to know which standard is likely to be applied. Knowing this difference is crucial as Frye relies more on a “general acceptance” of methods while Daubert evaluates the reliability and relevance of those methods as well as it subject to a judge’s discretion.

Frye can be a little restrictive if you are dealing with a situation outside the normal procedures of forensic engineering or when you have to “cross-pollinate” some procedures from other sciences to explain a result. Daubert tends to provide more opportunities for innovative methods that are on the cutting edge of science, as long as they have clear documentation and peer review backing.

A good example of the difference between Frye and Daubert is AI (artificial intelligence). Advanced computer simulations using AI for forensic engineering are still facing challenges because it can be difficult to present all the information in an unbiased way for a judge to see – assuming they will use the equipment provided for such a presentation.

Current Landscape of Evidentiary Standards

It is extremely difficult to nail down a specific standard accepted by all courts in the United States when it comes to expert testimony of forensic engineers like our professionals at Dreiym Engineering. Federal courts are easier because they rely on the Supreme Court’s decision in Daubert v. Merrel Dow Pharmaceuticals, Inc. as precedent as well as Kumho Tire Co. v. Carmichael in 1999.

When you think of testifying to federal courts, it comes down to the reliability of the standards presented. While Daubert is more flexible, you really must demonstrate that any given forensic methodologies are based on sound scientific principles. Remember that under a Daubert challenge, the judge acts as the gatekeeper, so you have the communication issue of explaining such a method in terms courts will understand.

As for state-by-state variability in Frye vs. Daubert, it’s tough to give one standard. For instance, Dreiym Engineering is based in Texas. While we serve clients all over the globe, we do most of our testifying in courts using the Rule of Evidence 702 and a Modified Daubert. However, if we were to provide evidence up north in Washington state, we would still need the Rule of Evidence 702, but through the lens of the Frye Standard.

What is the Rule of Evidence 702?

The Rule of Evidence 702 is frequently challenged in courts. In the simplest terms, it means any expert with special knowledge in a field (expertise) may testify to help a jury understand complicated facts in a case. That knowledge must be reliable and relevant and subject to a gatekeeper judge.

Most of the information in this rule comes from the Daubert Standard, but think of it as proving expert qualifications of the testimony, providing direct relevance to the facts of the case, and offering a method based on reliable scientific principles.

The key item to remember is the Rule of Evidence 702 cannot be based on personal beliefs or opinions. If an expert witness were to say, “The world is flat because I’m an astronaut and geologist,” but provide no relevant, proven, and reliable methodologies to such a statement, it would likely be thrown out of court as inadmissible.

Implications for Forensic Engineering Practice

Preparing for Testimony

As you can imagine, forensic engineers have to be prepared for either a Daubert challenge or a Frye challenge. To do this, a lot of time and energy must be spent on preparing for the testimony. Experts need to provide technical information, reliable methodologies, and meet the legal criteria of the jurisdiction, all without sacrificing simplified language that a jury will absorb.

It helps to ensure the testimony provided demonstrates testable, peer-reviewed information with a known error rate that is widely accepted by the scientific community. The more forensic engineers maintain this standard, the better the outcome. Such meticulous attention reduces the risk of exclusionary data that might shift responsibility or blame in cases of insurance fraud all the way to arson.

Challenges Faced

Forensic Engineers must also prepare for challenges. The first set of challenges will be jurisdictional. If an expert witness comes equipped for an area heavily reliant on the Frye Standard when it actually uses the Daubert Standard, the opposing counsel will attempt to toss the testimony.

Next will be the details of the analysis. Engineers must be adaptable to live testimony adjustments and balance technical complexity with courtroom communication. Being the smartest kid in the room is only helpful if you also can provide complex information in a way that doesn’t overwhelm the rest of the people involved. In some ways, you have to be both an expert witness and an information guide willing to teach while you testify.

Finally, forensic engineers have to deal with frequent Daubert challenges seeking to discredit any testimony by questioning the underlying validity of the techniques, methodologies, or processes involved. That can be a massive hurdle to leap if the court or jury has no experience with the given topic or case at hand.

The best way to prevent any of these challenges from “derailing” a case is by being well-prepared with legal requirements and current industry standards so your expertise shines through in a testimony.

Opportunities for Improvement

Change is inevitable. It is as regular as death and taxes. The more legal case diversity happens, the greater the need for evolving standards in expert testimony. Forensic engineers have the opportunity to be at the forefront of this need.

With advanced technologies uncovering new methods like AI, drones, and component testing, we will likely see Daubert challenges increase. That is why experts like ours at Dreiym Engineering continue to collaborate within the industry. We attend the latest conferences, trade shows, and receive ongoing training to ensure our hard-earned reputation as experts in our industry remains undeniable.

Clients rely on our expertise to get the truth about so many situations. We take this seriously and are fully committed to meeting and improving any standards necessary so that we may present clear evidence-backed testimony.

Real-World Examples

Case law on Frye and Daubert is fairly extensive. It seems like every industrial accident or mechanical lawsuit ends with some form of expert testimony that is challenged. With that in mind, it may help to present a couple of “real-world” examples of these standards.

Example 1: A Frye Jurisdiction Case

Let’s consider the Frye Standard first. We are in a state that uses such a standard for testimony where a forensic engineer is presenting information on a structural failure lawsuit involving a collapsed highway bridge. Using a novel computer simulation, the engineer demonstrates how material fatigue over time directly contributed to the collapse.

While the methods used were scientifically sound and offered a compelling testimony for the jury, the opposing counsel quickly pointed out that the computer simulation lacked the “general acceptance” rule. This is because the majority of the forensic engineering community hasn’t moved to a VR (virtual reality) simulation where a judge or jury wears a device to “re-live” the scenario.

As a result of this oversight, the testimony was excluded, and the case went forward without the critical information necessary for the jury to make an informed decision.

Example 2: A Daubert Jurisdiction Case

Now, let’s flip over to a federal court where the Daubert Standard is widely accepted. Here, our forensic engineer presents information about a recent pipeline explosion. Evidence about advanced soil corrosion modeling that identifies a previously undetected cause of the failure is provided.

As expected, the opposing counsel issues a Daubert challenge, but the engineer is well prepared and demonstrates that the modeling technique methodology is testable, peer-reviewed, and has a low documented error rate. With the judge being the gatekeeper, the testimony is deemed admissible, and the parties responsible are found in error for damages.

Both examples point out how challenging it can be to provide information in a way that will stand out not only for its scientific credence but also for ease of communication in such critical cases. Preparedness and awareness of the standards must be employed if expert testimony is to be given. Relying on an experienced team like ours at Dreiym Engineering is your best bet in receiving such crucial evidence.

The Role of the Judge as a Gatekeeper

One of the aspects of the Daubert Standard is worth focusing on a little closer. That would be the idea of judges serving as gatekeepers.

It is up to a judge to ensure the evidence meets accepted scientific principles supported by underlying criteria. Most of the time, this evaluation will occur during a pretrial hearing. Someone on the opposing counsel will find the expert testimony during the discovery phase of a case and then issue a Daubert Challenge.

Judges have to then decide whether or not the testimony meets the threshold for admissibility. The responsibility of this decision not only matters to the case at hand, but also sets a precedence for future cases. That precedence is what we wish to emphasize.

While Daubert provides a certain level of flexibility, a forensic engineering firm has a massive responsibility to adhere to industry-accepted ideals and standards when presenting new methodologies. If a lower standard of evidence is allowed, we as a society run the risk of not finding the truth.

The point is that you want to hire an engineering firm with the experience to present expert testimony, but also the awareness of a judge’s or jurisdiction’s history when it relates to scientific inquiry and methodology.

Final Thoughts

Frye vs. Daubert and how to apply these standards when giving expert testimony will be a factor for any forensic engineering firm. It is crucial that these experts meet any given standard based on the legal jurisdiction and scientific rigor of the case.

Don’t forget there are ethical considerations. Experts may feel pressure from either defending or prosecuting attorneys to give testimony that sways a jury one way or the other. The integrity of a forensic engineering firm must be without question. That requires a formal commitment to seeking the truth through evidence-based processes that are reliable, tested, and easy to communicate to those without such expertise.

The stakes are high whenever a case is put in front of a judge. Insurance companies, legal entities, businesses, and even governments are well aware of the pivotal role expert testimony can play toward a given outcome. Navigating the complexities of Daubert challenges and Frye challenges requires the professional preparation of evidence, meticulous documentation, and an unwavering dedication to scientific excellence.

At Dreiym Engineering, we provide reliable, scientifically defensible evidence that can stand up to any scrutiny, regardless of Frye and Daubert standards. For over 30 years, we have led the electrical and corrosion projects industry throughout Texas, Louisiana, Oklahoma, New Mexico, and Colorado. The next time you need expert testimony you can count on, contact our professional team.