Expert Testimony in Maryland: Frye-Reed or Daubert?

*Reginald Smallwood

Laws undoubtedly evolve over time.  However, is there ever a point when a law evolves into an entirely new law?  Many states use federal laws as guidance for creating new state laws. Michael Morgenstern, Daubert v. Frye – A State by State Comparison, The Expert Inst. (Apr. 3, 2017), However, if the state law evolves into the federal law, should the state simply adopt the federal law?  This is the current dilemma in Maryland courts regarding the evidentiary rule for evaluating scientific expert testimony.  The state is holding onto the name of its Frye-Reed test, but the test’s application is becoming more like the federal Daubert test. Sissoko v. State, 182 A.3d 874, 892 (Md. Ct. Spec. App. 2018).   

Pursuant to Maryland Rule 5-702, the Frye-Reed test is Maryland’s standard for valuating scientific expert testimony.  Md. R. 5-702; Reed v. State, 391 A.2d 364, 372 (Md. 1978).  The test is a combination of federal and state case law.  See id.  In 1923, Frye established the general acceptance test for evaluating expert testimony.  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).  The Frye test requires determining whether the expert’s opinion is generally accepted in the expert’s field.  Id. at 1014.  If so, the opinion is held reliable and admissible in court.  Id.  In 1978, Maryland adopted the Frye test when deciding Reed, thereby creating the Frye-Reed test.  Reed, 391 A.2d at 372.  At that time, the Frye-Reed test stated (1) the expert’s opinion must be generally accepted within that field and (2) be based on a technique that is deemed reliable.  Id.  Unlike Frye, however, Frye-Reed allows expert opinions to be based on new and controversial, but reliable, techniques.  Id. at 368.

In 1975, the Federal Rules of Evidence (FRE) were enacted. FRE Legislative History Overview Resource Page, Fed. Evidence Review, (last visited Sept. 16, 2018).  FRE 702 addressed evaluating expert testimony.  Fed. R. Evid. 702.  In 1993, the Supreme Court in Daubert held FRE 702 superseded the Frye test.  Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588–89 (1993).  The Court reasoned the language of FRE 702 did not make general acceptance an absolute requirement when evaluating expert testimony.  Id.  Thus, the Supreme Court established the Daubert test, which requires the court to determine whether the underlying methodology of an expert’s opinion is scientifically valid. Id. at 592–93.

In Daubert, the Supreme Court identified four factors to consider when determining whether a methodology is scientifically valid: (1) whether the theory or technique can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance.  Id. at 593–94.  The Court emphasized that the Daubert test is “flexible” and focused on the methodologies used, rather than conclusions drawn from them.  Id. at 594–95.

Instead of adopting the Daubert test, Maryland continued its use of the Frye-Reed test.  See Md. R. 5-702.  In 1994, Maryland established Rule 5-702.  Id.  The rule is accompanied with the following Committee Note:

This Rule is not intended to overrule Reed v. State, 283 Md. 374 (1978) and other cases adopting the principles enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  The required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law. Compare Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).


Since Rule 5-702 was established, Maryland courts have appeared to struggle with evaluating expert testimony.  Does it apply to new and/or old scientific methodologies? Yes—it applies to new and old scientific methodologies.  See Clemons v. State, 896 A.2d 1059, 1061 (Md. 2006); see also Montgomery Mutual Ins. Co. v. Chesson (Chesson I), 923 A.2d 939 (Md. 2007).  Does passing the Frye-Reed test mean Maryland Rule 5-702 is automatically satisfied?  No.  See Exxon Mobil Corp. v. Ford, 71 A.3d 105, 138 (Md. 2013); see also Roy v. Dackman, 124 A.3d 169, 180–81 (Md. 2015).  Is Maryland ready to adopt the Daubert test?  As of 2017, the Court of Appeals of Maryland says no, but preceding and subsequent case law suggests otherwise.  See Savage v. State, 166 A.3d 183, 195 (Md. 2017); see also Blackwell v. Wyeth, 971 A.2d 235, 260 (Md. 2009); see also Sissoko, 182 A.3d at 892.

In Blackwell, the Court strongly relies on the Daubert test.  Blackwell, 971 A.2d at 254–58.  The Blackwell court first considers the “analytical gap” assessment in Maryland.  Id. at 254–56.  The “analytical gap” assessment, a Daubert standard, precludes expert opinions with gaps between the expert’s conclusion and the methodologies used to draw that conclusion.  Id.  The Blackwell court also relies on Daubert’s gatekeeping metaphor.  Id. at 256–58.

The Maryland Court of Appeals most recently expanded the scope of the Frye-Reed test towards the Daubert test in Savage.  Savage, 166 A.3d at 198–202.  In Savage, the Court held that the Frye-Reed test requires the “analytical gap” assessment and even applies to generally accepted methodologies.  Id. at 195.  Judge Adkins, joined by Chief Judge Barbera and Judge McDonald, wrote Savage’s concurring opinion.  Id. at 204.  The concurrence agrees with the court’s decision but rejects the continuation of Frye-Reed and urges Maryland to adopt the Daubert test.  Id.  The concurrence also notes that the drastic evolution of the Frye-Reed test has made its application unclear.  Id. at 207–11.  Additionally, the concurring opinion states that Maryland’s adoption of Daubert would allow Maryland to rely on other case law when faced with new challenges, because the majority of states have adopted Daubert.  Savage, 166 A.3d at 211.

The sentiments expressed in the Savage concurrence are echoed in Sissoko. Sissoko, 182 A.3d at 892–95.  The opinion repeatedly cites the Savage concurrence in its application of the Frye-Reed test.  Id.  Essentially, the Court explains that the recent evolution of the Frye-Reed test has caused it to overlap with the Daubert test.  Id.  The Court even notes that many components of the tests have “melded into one.”  Id. at 898.

Maryland’s adoption of the Daubert test seems inevitable and near.  At the time Maryland Rule 5-702 was enacted, the Frye-Reed test and the Daubert test were distinctly different.  Reed, 391 A.2d at 372 (Md. 1978); Daubert, 509 U.S. at 588–89.  Nearly twenty-five years and dozens of cases later, the two tests are nearly identical.  See Sissoko, 182 A.3d at 892.  Clearly, the Frye-Reed test has evolved because of the influence of the Daubert test.  Savage, 166 A.3d at 197–98; Blackwell, 971 A.2d at 254–58.  Savage’s concurrence and Sissoko’s opinion show a judicial desire to adopt the Daubert test in Maryland.  Savage, 166 A.3d at 204; Sissoko, 182 A.3d at 892–95.

Additionally, Maryland is one of ten states that has retained some form of the Frye test.  FRE Legislative History Overview Resource Page, Fed. Evidence Review, (last visited Sept. 16, 2018).  As noted in the Savage concurrence, adopting the Daubert test would allow Maryland to rely on significantly more case law when faced with new challenges regarding expert testimony.  Savage, 166 A.3d at 211.

It is completely understandable for states to want to follow their own precedent.  It makes even more sense for states to be hesitant to abandon their law to adopt a new non-preemptive federal law.  However, when a state law consistently relies on a federal law, to the extent that the laws have morphed into one, the state should adopt the federal law.  Savage, 166 A.3d at 211–12.  Thus, it is my prediction that Maryland will likely abandon its Frye-Reed test and adopt the Daubert test.

*Reginald Smallwood is a second-year student at the University of Baltimore School of Law, where he is a staff editor for the University of Baltimore Law Review and a Scholar for the Fannie Angelos Program for Academic Excellence. He is currently interning for the Hon. George L. Russell, III in the U.S. District Court for the District of Maryland. This past summer, Reginald was a summer associate at Gallagher, Evelius, & Jones. Next summer, Reginald will serve as a summer associate at Miles & Stockbridge.

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