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LJN NewslettersNewsSectionsThe Matrimonial Strategist

The Tao of Daubert

BY Richard West
October 30, 2008

All too often, the outcome of a “child custody dispute” will turn upon the recommendations contained within the custodial or parenting plan evaluation of the psychological expert. This first of a two-part article contains: 1) a brief review of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) standards; 2) an exploration of why evaluations are so rarely challenged by Frye/Daubert hearings; and 3) the foundation for a meaningful review of the evaluation under either Frye or Daubert standards. For those of you less familiar with Frye and Daubert, here is a brief review.

Frye and Daubert

In 1923, the Court of Appeals for the District of Columbia stated:

Just when a scientific principal or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principal must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principal or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014 (emphasis added).

In 1975, the Federal Rules of Evidence were promulgated. Rule 702 states that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” (The language in italics was added in the year 2000, which will be discussed in the second part of this article).

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