Baltimore, Md. (September 8, 2020) - Maryland, the "Old Line State," knows a thing or two about holding the line. The stalwart regiments of Maryland regulars known as the Old Line fought bravely during the American Revolution's first major engagement, the Battle of Long Island. See R. Polk, Holding the Line: The Origin of the Old Line State. But no line can or should be held forever. So, it was on August 28, 2020, 244 years and one day after the Old Line stood its ground, that the Court of Appeals of Maryland, the highest court in the state, finally gave up its rear-guard resistance to the Daubert standard for the admissibility of expert testimony.
The 4-3 decision came in Rochkind v. Stevenson. __ Md. __, slip op., No. 47, Sept. Term, 2019 (Stevenson II). Stevenson II ended Maryland's use of the century-old Frye-Reed general acceptance standard in favor of the relevance/reliability standard first enunciated by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). Maryland is now the 40th state to adopt Daubert.
History of Expert Testimony Admissibility Standard in Maryland
Maryland trial courts have too often abdicated their role as gatekeepers whose job it is to prevent juries from hearing "junk science." This was due in no small part to Frye-Reed, which asked only whether the theory underlying an expert's testimony had been "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (adopted by Reed v. State, 283 Md. 374 (1978); hence, "Frye-Reed").
This standard resulted in consistent "complacency . due to the ability of a later court to take judicial notice of a methodology's general acceptance." Stevenson II, slip op. at 38 n.16. Frye-Reed was thus subject to criticism because it "exclude[d] scientifically reliable evidence which is not yet generally accepted, . admit[ted] scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny," and "excused the court from even having to try to understand the evidence at issue." Id., slip op. at 32 (quoting State v. Coon, 974 P.2d 386, 393-94 (Alaska 1999)); Id., slip op. at 31 (quoting United States v. Horn, 185 F. Supp. 2d 530, 553 (D. Md. 2002)).
Daubert, which held that Federal Rule of Evidence 702 superseded Frye, developed a non-exclusive list of factors that federal trial courts were to vigorously use in making threshold determinations that "scientific testimony" was "not only relevant, but reliable." Daubert, 509 U.S. at 589. Though Daubert concerned only "scientific testimony," the Supreme Court later extended it to testimony based on 'technical' and 'other specialized' knowledge." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In adopting Daubert, Maryland's Court of Appeals has now "task[ed] trial courts with analyzing the reliability of testimony., without the notion that because...
