Nearly 30 years after the Supreme Court announced the Daubert standard, Maryland’s highest court has followed suit. By adopting the Daubert standard, the Court of Appeals overrules its longstanding Frye-Reed test, and completes the State’s slow drift away from focusing on the “general acceptance” of expert testimony to one focusing on the reliability of methodology.
The “general acceptance” test for the admissibility of novel scientific testimony, first espoused in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was adopted by Maryland in the 1978 opinion Reed v. State: “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s” relevant scientific community. Thus, the Frye-Reed standard was born. Fifteen years later, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that Federal Rule of Evidence 702 superseded the “general acceptance” test, and provided a nonexclusive list of factors to help federal courts determine the reliability of expert testimony. Thirty-eight states followed and replaced their Frye standards with Daubert, but Maryland did not. Slowly however, Maryland’s standard morphed into “Frye-Reed Plus,” implicitly and explicitly relying on and adopting several Daubert principles. This drift “has led to a duplicative analytical process and ‘muddied’ the waters” of how Maryland courts handle expert testimony. In Rochkind v. Stevenson, No. 47, September Term 2019, the Court of Appeals clarifies the waters by completing the leap to Daubert.
This leap implements a single standard by which courts may evaluate all expert testimony. Writing for the majority, Judge Getty notes that Judge Sally Adkins’s (Ret.) concurring opinion in Savage v. State, 455 Md. 138 (2017), “blazed the trail” for the adoption of Daubert. The impetus behind adopting Daubert now, he stresses, is the “desire to refine the analytical focus when a court is faced with admitting or excluding expert testimony.”
Daubert refocuses a court’s attention away from acceptance of a given methodology—although that is not totally removed from the calculus—and centers on the reliability of the methodology used to reach a particular result. Helpfully, the Court set forth the Daubert factors it finds persuasive in interpreting Maryland Rule 5‑702, “Testimony by Experts.” They include, but are not limited to: (1) whether a theory or technique can be (and has been) tested; (2) whether a theory or technique has been subjected to peer review and publication; (3) whether a particular scientific technique has a known or potential rate of error; (4) the existence and maintenance of standards and controls; and (5) whether a theory or technique is generally accepted.
Since this is a new interpretation of Rule 5‑702, the Court’s decision applies to any case on appeal when Rochkind was filed (August 28, 2020), provided that the question of whether a trial court erred in admitting or excluding expert testimony under Rule 5‑702 or Frye-Reed is preserved for appellate review.
For more information, see Stanley Rochkind v. Starlena Stevenson, No. 47, September Term, 2019, Opinion by Getty, J.