American Judges Association


Date of this Version



Court Review, Volume 51, Issue 1 (2015)


Copyright American Judges Association. Used by permission.


In the Daubert decision of 1993, the Supreme Court directed federal judges to screen expert evidence for reliability before admission, rejecting the “general acceptance” standard of Frye v. United States.1 To ensure the appropriate level of reliability to admit expert testimony, the Court suggested a series of substantive factors for judges to analyze, such as peer review and the Frye “general acceptance” standard. Several years later in General Electric v. Joiner, Justice Breyer also suggested procedures judges could use to decide gate keeping questions.2

In the years after Daubert, researchers began to evaluate how judges perform this Rule 702 reliability screening. One group of studies considered the frequency of expert-reliability challenges, finding that litigants raised reliability issues more often after Daubert than before. Other studies considered the methodology of expert gate keeping by analyzing the procedures used by judges in deciding reliability questions. Others chose to focus on the substantive factors that judges consider when gate keeping expert testimony, finding that some of the Daubert factors were more useful than others.