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D.C. Appeals Court Considers New Scientific Evidence Rule

Updated on November 26, 2015

Courts Struggle with Scientific Evidence

The D.C. Court of Appeals is considering adopting a new standard for admitting scientific evidence at trials in the District of Columbia.

If the court adopts the rule, it would mean D.C. has finally switched to a standard used in most of the United States, according to a report by The Legal Forum (

The appellate court is considering the rule in a lawsuit by 13 plaintiffs who accuse cell phone manufacturers of causing brain cancer from radiation emitted by their phones.

Currently, the District of Columbia uses the rule for admitting scientific evidence derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test, or general acceptance test, gives a judge discretion to decide whether expert opinions can be admitted because they are based on scientific techniques generally accepted as reliable in the scientific community.

In federal courts and most state courts, the Frye test was replaced by Federal Rule of Evidence 702 after the ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Rule 702 says, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise…”

Local prosecutors and public defenders joined in asking the D.C. Court of Appeals to switch to the Rule 702 standard. They say it would represent a drastic change that creates a tougher standard and a bigger role for judges as “gatekeepers.”

However, attorney Jeffrey B. Morganroth, who represents the plaintiffs, said the Frye test works well.

Judge Catharine F. Easterly hinted during oral arguments that the court could be receptive to a more reliable standard.

The D.C. Public Defender Service said in a court filing that a better admissibility rule could help avoid unreliable forensic evidence that is a leading cause of wrongful convictions.

The filing said that as a result of improper bite-mark analysis and hair and handwriting identification, “Innocent defendants can lose their liberty…”

The court has not indicated when it expects to rule on the issue.

Court Considers New Rule on Scientific Evidence

The D.C. Court of Appeals is considering whether to adopt a federal rule on admitting scientific evidence.
The D.C. Court of Appeals is considering whether to adopt a federal rule on admitting scientific evidence.

Court considers new scientific evidence rule

Should judges have more discretion in deciding whether to admit scientific evidence?

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    • Tom Ramstack profile image

      Tom Ramstack 2 years ago from Washington, D.C.

      I think Rule 702 is trying to add an extra layer of standards to avoid allowing shaky evidence to be considered by a court. Whatever else you say about it, it's the mostly widely accepted rule nationwide.

    • RonElFran profile image

      Ronald E Franklin 2 years ago from Mechanicsburg, PA

      If I'm understanding you correctly, the difference between the Frye test and Rule 702 is that under Frye an expert can testify only based on widely accepted scientific standards, whereas under 702 the expert can offer testimony, even an opinion, if it's backed up by appropriate credentials of expertise. I suppose 702 is gaining acceptance because of the swiftness of scientific and technological change. "Widely accepted" probably lags behind state of the art.