Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test

Part I of this paper briefly reviews the history of the Frye rule from its origins in 1923 to its demise in federal court in Daubert in 1993. This section focuses especially on how Frye, a rule that for decades applied almost exclusively in criminal cases, came to be the focal point of the controversy over the admissibility of scientific evidence in toxic tort cases in the early 1990s. Part II of this paper discusses the development of the Frye test since 1993. Following the lead of federal courts operating under Daubert's broad gatekeeper mandate, Frye jurisdictions are increasingly applying their tests for the admissibility of expert evidence to civil cases, especially toxic tort cases. However, Frye jurisdictions are divided regarding whether the general acceptance test applies primarily to the expert's general methodologies or must be applied to the expert's conclusions. Recently, several courts have followed Joiner's lead, and instead of focusing on the methodologies/conclusions distinction have scrutinized experts' reasoning process. Meanwhile, Frye jurisdictions also must decide whether to follow the lead of federal courts applying Kumho Tire and apply Frye to non-scientific evidence, especially social science evidence. Thus far, few Frye courts have done so. One alternative adopted by some courts is to apply Frye only to novel scientific evidence, but to subject social science evidence to a separate reliability test under state versions of Federal Rule of Evidence 702. Part III of this article concludes that case law under Frye is slowly converging with Daubert jurisprudence. Rather than allowing this process to continue haphazardly and inconsistently, with all the awkwardness that shoehorning the Frye general acceptance test into Daubert-Joiner-Kumho reliability precedents entails, state legislatures should enact state versions of new Federal Rule of Evidence 702, which explicitly adopts the Daubert trilogy.