More than 10 years ago I wrote two columns documenting that, although the Daubert validation test had supplanted the Frye general-acceptance test in most states as well as federal court, the state of the law had achieved an equilibrium. [NLJ, May 13 and July 22, 2002.] In the columns I predicted that "there will likely be further movement toward Daubert, [but] the shift will be a gradual one." I noted that California was the largest jurisdiction still steadfastly adhering to Frye v. U.S. (D.C. Cir. 1923).
That equilibrium largely persisted during the past decade. It is true that Daubert v. Merrell Dow Pharmaceuticals ( U.S. 1993) now has a slightly larger number of adherents than it enjoyed in 2002, but until late last year the state supreme courts in all the leading jurisdictions following Frye states such as California, Illinois and New York had consistently declined invitations to shift to Daubert. 1 Giannelli, Imwinkelried, Roth & Moriarty, Scientific Evidence § 1.14 (5th ed. 2012).
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