Should Expert Witnesses Always Rely on Peer-Reviewed Methodologies?
- Under Frye, an expert’s opinion must be “generally accepted” within the scientific community, whereas under Daubert, general acceptance is one of several factors to consider. Though notably different, each standard employs, to a certain extent, the concept of peer review: that is, the review of an expert’s research by members of its own community prior to publication. In Daubert, whether an experts’ technique or theory has been subject to peer review and publication is a clearly enumerated factor. And while not explicitly stated in Frye, the prevalence and significance of peer review can affect a court’s decision when determining if an opinion is generally accepted in the scientific community.
- What is Peer Review?
- Peer Review under Frye
- What Does Daubert Say?
- Like most inquiries under Daubert, the analysis is fact-specific. For example, a lack of peer review or publication is deemed unimportant when the opinion is supported by widely accepted scientific knowledge. See Kannankeril v. Terminix, International, Inc. 128 F.3d 802, 809 (3d. Cir. 1997). On the other hand, since Daubert has been expanded to include non-scientific experts (See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)), who rely on “skill- or experienced-based observations,” i.e., law enforcement experts, peer review (though still a factor to consider) may sometimes be unavailable in these instances.
Overall, the purpose of peer review is to ensure the reliability and validity of an expert’s methodology. However, the limitations and flaws within the process should not be overlooked.