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How Do We Handle New or Novel Scientific Evidence At Trial ?

In today's blog post, I discuss what we attorneys do if we have to deal with a new or novel scientific concept in a trial. We have to deal with the standards announced by the US Supreme Court in Frye v. United States by participating in what is called a Frye hearing and provide evidence that the procedures and results are generally accepted as reliable in the scientific community.

Where the admissibility of scientific evidence is genuinely in issue, a Frye hearing may be ordered by the Court to ascertain whether the scientific theory and the procedures used to obtain the result have gained general acceptance in the scientific community and whether they result achieved is accepted by that community as reliable. The Frye rule is not really concerned with a particular experts conclusions but whether the expert's deductions are based on principles that are sufficiently established to have gained general acceptance as reliable. General acceptance does not mean that a majority of scientists in the discipline agree with the expert's conclusion. Rather, it means that a scientist offering the opinion or theory have followed generally accepted scientific principles and methodology in evaluating clinical data and reaching his or her conclusion.

The burden of proving general acceptance rests on the party offering the disputed expert testimony. In determining whether a theory has gained general acceptance in the relevant scientific community, the Court will often consider controlled studies, clinical data, professional literature, recognized text books, peer review and judicial opinions indicating general acceptance of the theory. The party seeking to introduce the disputed expert opinion does not have to produce scientific literature that expressly supports the expert's view to establish general acceptance in the scientific community. It is sufficient that a synthesis of various studies or cases reasonably permits the conclusion the expert reached. The fact that there is no textual material to directly support the expert's methodology is relevant to the weight and not the admissibility of the expert's testimony. In addition, once the Court determines that the technical or scientific field is not novel and need not be tested under the Frye rule, the testifying expert's specific methodologies and the validity of his or her conclusions are subjects for trial.

If the Court finds that the scientific evidence is generally accepted as reliable by the relevant scientific community, it must next determine whether a proper foundation is laid at trial to admit the evidence. The Court is not tasked with the responsibility to decide whether the expert testimony is true as this function is left for the jury. The Court has to determine whether the accepted techniques were employed by the experts in the case. If the answer to this question is yes, then the expert testifies on this issue and the jury hears the evidence.

So what does all of this stuff mean to you as a potential client ? It means that snake oil salesmen don't get to testify at trial. A party doesn't get to have someone with several degrees and lots of letters behind their name get on the witness stand and say that something happened or didn't happen because of a reason that helps or hurts your case. Expert witnesses have to provide testimony based on scientific principles that are generally accepted and followed by the witness in your case. This all boils down to the common sense rule of most evidence - testimony has to be reliable. Reliability is the underlying principle of almost all evidentiary issues and it holds true here with expert witness testimony as well. A defendant cannot just throw money at a hired gun and put them on the witness stand to say whatever they want and neither can a plaintiff.

In the end, these are issues that we attorneys are concerned with most of the time and our client's normally are not involved in discussions of these types of issues. However, I always try to keep my client's informed of every step of the way and I talk to them, if they want to know, just like I would speak to another attorney I work with and I let them know everything that is going on with their case.

With all this being said, I will close by saying what I normally say which is I hope that our readers do not have to consult me and use our services. Unfortunately, I know that will not happen because there will always be plaintiffs and there will always be defendants. I hope if you or someone your love is injured in an accident, you will will consider giving us a call and using our services. We are very experienced litigators and we always offer free consultations. Just call us at 1.888.900.6204 and we will fight for you.