General Acceptance

Like peer review and publication, general acceptance is only as good as the field that is surveyed. Under Frye, of course, general acceptance was the standard by which expert testimony was judged. But general acceptance operates slightly differently under Daubert, where it is used in conjunction with other factors and is no longer a necessary or sufficient condition for admission.

Although barely noticed for decades, the 'Frye Test' eventually became the icon for one of the dominant notions of the proper criterion for the admissibility of scientific evidence—general acceptance within its field. Frye may have become the standard of choice for several reasons. Foremost, perhaps, it was easy to apply and required little scientific sophistication on the part of judges. Moreover, the controversial cases were of the subset of scientific evidence cases that Frye was designed to deal with: asserted new knowledge that lacked an established clientele. To established fields of endeavor, to old 'knowledge', the courts implicitly applied the old marketplace notions: if one were a card-carrying member of a recognized occupation or profession, one's proffered expert testimony was admitted and the validity of the underlying knowledge was assumed. Finally, by the middle of the twentieth century, the distinction between experts and expertise had grown more apparent. Not only did new fields or new specializations arise, but old fields acquired and offered distinct new knowledge. New knowledge was sometimes put before courts in a form more abstracted and isolated from the people who presented it. Frye had been designed to fit just these kinds of situations (Faigman, Porter and Saks, 1994).

Over time, courts and commentators found the general acceptance test to have significant limitations. In particular, the vagueness of the general acceptance test renders it susceptible to manipulation and tends to obscure the relevant inquiry. Indeed, virtually every component of the test has sustained severe criticism.

Frye is often criticized as overly conservative, for it imposes a protracted waiting period that valid scientific evidence and techniques must endure before gaining legal acceptance. This criticism highlights the fact that all significant scientific findings gestate before they are accepted by the general scientific community. During this time period courts and the parties before them are deprived of this work. Moreover, many critics also note the 'nature' of the scientific enterprise which sometimes responds negatively to revolutionary findings, because they might threaten entrenched 'paradigms' and thus entrenched scientists (Horrobin, 1990). Proponents of this view observe that the findings of a scientist heralded today as brilliant, but dismissed in his day as misguided or worse, would be excluded under a general acceptance test. Galileo, for example, or Einstein early in his physics career, would not have been allowed to testify because of the radical nature of their opinions.

Commentators responding to this criticism of Frye argue that for every Galileo or Einstein there are hundreds of Lysenkos with 'revolutionary' theories that are eventually proven false by empirical research. They maintain further that judges (and jurors) should not be expected to distinguish 'true' scientific revolutions from 'false' ones. If scientists are unable to recognize an Einstein when they see one, laypersons are unlikely to have this ability (Faigman et al., 2002).

Another asserted weakness of the Frye approach concerns the difficulty of ascertaining when a scientific proposition has been generally accepted. The test does not specify what proportion of experts constitute general acceptance. Courts have never required unanimity, and anything less than full consensus in science can quickly resemble substantial disagreement. In fact, the most rigorous fields with the healthiest scientific discourse might fail the Frye test with the greatest frequency. In light of the skeptical perspective of good scientific investigation, judges should be cautious when they approach a field in which there is too much agreement.

Moreover, the Frye test requires general acceptance in the particularfield. But there are no standards defining which field to consult. Courts have had considerable difficulty assessing scientific information under this standard because it often extends into more than one academic or professional discipline. Furthermore, each field may contain subspecialties. This difficulty leads to paradoxical results. General acceptance, often criticized for being the most conservative test of admissibility, in practice can produce the most liberal standards of admission. The more narrowly a court defines the pertinent field, the more agreement it is likely to find. The general acceptance test thus degenerates into a process of deciding whose noses to count. The definition of the pertinent field can be over-inclusive or under-inclusive. Because the pertinent field can be so readily manipulated, the test by itself provides courts with little protection against shoddy science.

Even more critically, the particular field of inquiry leaves the law at the mercy of the practitioners of the respective fields. Different fields have widely varying standards. Some fields have a tradition of vigorous debate, data gathering, and hypothesis testing, an ethos consistent with the scientific enterprise. In these fields, an idea does not become generally accepted until it passes a rigorous gauntlet of testing. Other fields lack these traditions and accept ideas with far less scrutiny The courts have difficulty telling one of these fields from another. Indeed, and especially ironically for courts, they may mistake vigorous research and debate over the meaning of the findings for lack of agreement (rather than the process of reaching trustworthy findings) and the lack of research and debate as a sign of consensus (rather than a sign of an immature or retarded science). Under the Frye variant, because the courts have to rely on the standards set within each field, they find themselves accepting more readily the offerings of less rigorous fields and less readily the offerings of more rigorous fields. Fields that set higher thresholds will place a smaller proportion of their knowledge over the threshold.

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