Shook, Hardy & Bacon Public Policy Chair Victor Schwartz weighs in on Minnesota’s potential change from Frye to Daubert standards for expert witnesses in a July 21 Minnesota Lawyer article, “Is Frye-Mack Toast? Committee Mulls Shift to Daubert Standard.”
Minnesota courts have operated under the Frye standard since 1923, but are considering dropping it for the Daubert standard which, following a 1993 U.S. Supreme Court decision, has been adopted by various courts across the nation. While the Frye standard allows expert testimony that is generally accepted by the scientific community, the Daubert standard is based on testing, peer review, error rates, and acceptability in the scientific community. The author of the article notes that Daubert is now applied in 37 states, and that plaintiffs’ counsel generally prefer Frye standards, and defense counsel prefer Daubert.
Weighing in on the ongoing debate, Schwartz points out that an attempt to change to Daubert has been hung up in Missouri by a governor veto, and that the Florida Supreme Court is considering whether to overturn the mandate from the state legislature. Schwartz says, “In some of these jurisdictions, the fight isn’t so much whether Daubert is right or wrong; it’s whether the legislatures have the authority to change the rules of evidence.”