Maryland Court of Appeals Adopts Daubert Test To Evaluate The Admissibility Of Expert Testimony
On August 28, 2020, in its opinion in Rochkind v. Stevenson, the Maryland Court of Appeals officially adopted the reliability factors set forth by the United States Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), which are used to evaluate the admissibility of expert testimony in both civil and criminal cases. Prior to Rochkind, although Maryland had adopted Maryland Rule 5-702, which was patterned after Daubert, Maryland courts technically continued following the Maryland Court of Appeals decision from 1978, Reed v. State (patterned after Frye v. United States, a D.C. Circuit case from 1923), which called for courts to consider primarily whether the basis of a scientific opinion offered for admission into evidence is “generally accepted as reliable within the expert’s relevant scientific community.” The Daubert analysis, which Rochkind explicitly adopted, is more flexible than the “uncompromising” “general acceptance test” from Reed and Frye, giving trial courts greater discretion to admit scientific expert testimony that is relevant and founded on sound principles, even though it may be novel or controversial. In sum, the adoption of Daubert sets forth a “single standard” for evaluation of all expert testimony.
Prior to adopting Daubert, Maryland courts generally admitted expert testimony through two channels – the Frye-Reed standard (based on “general acceptance”) and Maryland Rule 5-702 (patterned after Federal Rule of Evidence 702, employing some of the Daubert factors). Typically, expert testimony addressing novel scientific theories was required to meet both the minimum threshold Frye-Reed standard and the Md. Rule 5-702 requirements, while expert testimony addressing non-novel scientific evidence was only required to meet the requirements of Md. Rule 5-702. Daubert suggests consideration of numerous factors, many of which were not explicitly included in Md. Rule 5-702, including, among others: whether a theory or technique can be (and has been) tested; whether that theory has been subjected to peer review and publication; the existence and maintenance of standards and controls; and whether the expert testimony comes from an unjustifiable extrapolation from an accepted premise to an unfounded conclusion. In Rochkind, the Maryland Court of Appeals noted that Maryland’s “Frye-Reed” standard had already “drifted” toward Daubert in two ways, 1) Maryland courts have been using Frye-Reed “not only to evaluate scientific methods, but also to assess scientific conclusions,” and 2) Maryland courts have been applying Frye-Reed to established, as well as novel, scientific methods. Given that Maryland courts had been edging toward Daubert for decades, and since a supermajority of states follow Daubert, Rochkind reflects the Court of Appeals’ conclusion that it was time to finally explicitly adopt it in Maryland, as well. Since this ruling provides a new interpretation of Md. Rule 5-702, Rochkind applies to any cases pending on direct appeal as of the date of the opinion.
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