There are now three votes on the Court of Appeals to abandon the Frye-Reed test, and every reason to believe the court is poised to adopt the federal Daubert standard.
In Savage v. State, Judge Sally D. Adkins, in a remarkable concurring opinion joined by Chief Judge Mary Ellen Barbera and Judge Robert N. McDonald, detailed the confusion surrounding the Frye-Reed test and urged the court to formally adopt Daubert. The concurring opinion in Savage is significant for several reasons.
First, the Daubert issue was raised sua sponte by the three concurring judges. None of the parties in Savage even suggested that the court abandon Frye or adopt Daubert. That argument was, however, briefed extensively in Rochkind v. Stevenson, which was heard the day before Savage. The Rochkind court ultimately held that it did not need to reach the Frye-Reed test, and imported the Joiner/Daubert “analytical gap” analysis into Rule 5-702(3). Adkins authored the Rochkind opinion and appears to have been persuaded that Maryland should not continue to employ a test (developed in 1923) that has been rejected by the federal courts, rejected by the majority of state courts, and engendered confusion in the Maryland courts.
Second, with one possible exception, the concurring opinion and majority opinion in Savage are entirely consistent. Applying Frye-Reed, the Savage majority excluded the expert’s testimony under the Joiner/Daubert “analytical gap” analysis. The concurring opinion simply pointed out the obvious: Maryland is already applying Daubert’s analytical framework as well as its case law. Rather than take issue with the concurring opinion, the majority opinion acknowledged that (1) the court has repeatedly (read: too often) been called upon to interpret Frye-Reed and (2) the test has “evolved” over time.
The difference between the majority and concurring opinions concerns the reason the majority opinion did not analyze the expert’s testimony under Rule 5-702(3). In footnote 6, the majority opinion states Frye-Reed was applied because the expert’s testimony was excluded in Savage and admitted in Rochkind. In footnote 1, however, the three concurring judges state that the majority opinion analyzed the expert’s testimony under Frye-Reed because that was the only challenge made by Savage. The concurring opinion observed the expert’s testimony was challenged under both Rule 5-702(3) and Frye-Reed in Rochkind – which is why the Rochkind court applied Rule 5-702(3).
Perhaps we are misreading footnote 6, but it is unlikely that the Savage majority opinion did not apply Rule 5-702(3) because expert testimony was excluded. Rule 5-702 is routinely applied in both trial and appellate courts to exclude expert testimony. The same holds for Federal Rule of Evidence 702, which is the basis for Daubert. The more plausible explanation appears to be – as the concurring opinion observes – that Savage did not raise Rule 5-702(3) at trial or on appeal, which constrained the court to review the expert’s testimony under the only challenge he did make (Frye-Reed).
Third, there is nothing in the majority opinion that would lead one to believe there is not a fourth vote to abandon Frye-Reed. Savage was not a case in which the court issued dueling majority and concurring opinions. To the contrary, the majority opinion in Savage firmly embraced the Joiner/Daubert analysis, and represents one of the most thorough explications of the “analytical gap” rule in Maryland to date. Although it is difficult to read tea leaves, it is likely the four judges who did not join in the concurring opinion would prefer to address the Frye/Daubert issue when it is formally before the court.
Fourth, Adkins took the opportunity to dispel some common problems and misconceptions plaguing Frye-Reed. She pointed out, for example, that Frye-Reed applies to all scientific testimony, not just new or novel opinions, a common misperception among Maryland trial judges today.
Adkins also focused on the anomalous interplay between Rule 5-702(3)’s reliable methodology requirement and the reliability component of Frye-Reed. In particular, she correctly observed that, under certain circumstances, a trial judge may be required to make the same reliability determination twice – once under Frye-Reed and then again under Rule 5-702(3).
Finally, the concurring opinion appears to have understated the case for abandoning Frye-Reed. One of the most glaring problems with the current regime is the disparate standard of review that exits under Frye-Reed and Rule 5-702(3). If an appellate court analyzes the “analytical gap” under Frye-Reed, it reviews the question de novo If it analyzes it under Rule 5-702(3), the issue is reviewed under an abuse of discretion standard. There is simply no reason for appellate courts to review the same question (whether an “analytical gap” exists) under palpably different standards of review.
In sum, Frye-Reed appears to be on life support and Adkins just called “Code Blue.” In the wake of the concurring opinion in Savage, it appears to be just a matter of time before the Court of Appeals formally abandons Frye and adopts Daubert.
Ronald D. Getchey and Charles A. Danaher are partners at Sheppard Mullin Richter & Hampton LLP in San Diego and members of the Maryland and California state bars. They were members of the appellate team that represented Stanley Rochkind before the Court of Appeals in Rockhkind v. Stevenson. They can be reached at firstname.lastname@example.org and email@example.com.