Frye v. United States and the "General Acceptance" Standard for Economic Expert Testimony

Introduction

While the federal courts and many states have adopted the Daubert standard for expert testimony, a significant number of jurisdictions continue to apply the older Frye "general acceptance" test. Originating from a 1923 criminal case involving a polygraph test, Frye v. United States established a seemingly simple standard that has proven remarkably durable. For forensic economists practicing in Frye jurisdictions, understanding this standard's nuances is important. This article examines the Frye test's origins, its application to economic testimony, comparisons with Daubert, and practical strategies for navigating Frye jurisdictions.

1. The Origins: Frye v. United States (1923)

1.1 The Case

In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the defendant sought to introduce evidence from a systolic blood pressure deception test—a precursor to the modern polygraph. The Court of Appeals for the District of Columbia rejected the evidence, establishing what became known as the Frye test:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

1.2 The "General Acceptance" Standard

The Frye test focuses on a single criterion: whether the scientific principle or methodology has achieved general acceptance in the relevant scientific community. This deceptively simple standard dominated expert testimony law for 70 years.

2. Frye in the Economic Context

2.1 Application to Economic Methodologies

Courts applying Frye to economic testimony ask whether the economist's methods are generally accepted within the field of forensic economics. Common areas of scrutiny include:

• Discount rate selection: Is the chosen methodology mainstream?
• Worklife expectancy tables: Are the tables widely used?
• Present value calculations: Does the approach follow accepted practice?
• Hedonic damages: Is the methodology generally accepted?

2.2 Defining the Relevant Field

A critical issue under Frye is defining the "particular field" for determining general acceptance:

3. Frye vs. Daubert: Key Differences

Aspect	Frye Standard	Daubert Standard
Primary Focus	General acceptance	Scientific reliability
Number of Factors	One (acceptance)	Multiple (testability, error rate, etc.)
Judge's Role	Count noses in field	Gatekeeper evaluation
Novel Methods	Excluded until accepted	Admissible if reliable
Flexibility	Rigid	Case-by-case analysis

3.1 Advantages of Frye

• Simplicity: Single criterion easier to apply
• Conservatism: Protects against junk science
• Predictability: Clear standard for experts
• Deference: Relies on scientific community judgment

3.2 Criticisms of Frye

• Stifles innovation: New methods excluded despite merit
• Nose counting: Popularity over scientific validity
• Lag time: Years before acceptance achieved
• Vagueness: What constitutes "general" acceptance?

4. States Still Using Frye

4.1 Current Frye Jurisdictions

As of 2025, the following states continue to apply Frye or a modified version:

• California: People v. Kelly (Kelly-Frye test)
• Illinois: Pure Frye standard
• Maryland: Reed v. State (Frye-Reed standard)
• Minnesota: Frye-Mack standard
• New Jersey: Modified Frye
• New York: Frye standard
• Pennsylvania: Frye standard
• Washington: Frye standard

4.2 Hybrid Approaches

Some states apply Frye to novel scientific evidence while using different standards for other expert testimony:

5. Economic Methodologies Under Frye

5.1 Generally Accepted Methods

Courts in Frye jurisdictions consistently accept:

1. Present value calculations using standard formulas
2. Government statistical data (BLS, Census, SSA)
3. Actuarial life tables
4. Standard discount rate approaches (Treasury, total offset)
5. Human capital method for valuing lost earnings

5.2 Contested Methodologies

Methods facing Frye challenges include:

• Hedonic damages: Value of life enjoyment
• Below-market discount rates: Tax-adjusted rates
• Econometric projections: Complex statistical models
• Behavioral economics applications: Loss aversion adjustments

5.3 Case Examples

6. Strategies for Frye Jurisdictions

6.1 Establishing General Acceptance

To demonstrate general acceptance, economists should:

1. Cite professional standards
   • National Association of Forensic Economics (NAFE) surveys
   • Published practice standards
   • Ethics guidelines
2. Reference peer-reviewed literature
   • Journal of Forensic Economics articles
   • Academic economics journals
   • Textbooks on economic damages
3. Document widespread use
   • Survey data on methodology adoption
   • Prior court acceptance in jurisdiction
   • Use by government agencies

6.2 Addressing Frye Challenges

Common approaches include:

• Stay mainstream: Use conventional methodologies
• Document consensus: Show multiple sources using method
• Avoid novel approaches: Save innovation for Daubert jurisdictions
• Educate early: Brief attorneys on Frye implications

6.3 Responding to Challenges

When facing a Frye challenge:

7. The Future of Frye

7.1 Trend Toward Daubert

The long-term trend favors Daubert:

• 36 states have adopted Daubert or similar standards
• Federal courts uniformly apply Daubert
• Criticism of Frye's rigidity grows

7.2 Frye's Persistence

Yet Frye endures because:

• Simplicity appeals to busy judges
• Conservative approach protects jury system
• Established precedents provide stability
• Some courts apply relaxed versions

7.3 Implications for Forensic Economists

Practitioners must:

1. Know jurisdiction-specific standards
2. Maintain methodology documentation
3. Track evolving acceptance levels
4. Prepare for both standards

8. Practical Considerations

8.1 Pre-Trial Preparation

In Frye jurisdictions:

• File detailed methodology affidavits
• Prepare general acceptance documentation
• Anticipate voir dire on methods
• Consider motions in limine

8.2 Report Writing

Expert reports should:

• Explicitly state standard methodologies used
• Cite authoritative sources
• Note widespread acceptance
• Avoid novel terminology

8.3 Testimony Tips

Do	Don't
Emphasize conventional approach	Highlight innovative aspects
Cite multiple practitioners using method	Rely solely on personal experience
Reference professional standards	Criticize accepted methods
Show government agency usage	Emphasize academic theory

Conclusion

While Daubert dominates federal practice and increasingly state courts, the Frye standard maintains significant influence in several major jurisdictions. For forensic economists, success under Frye requires careful attention to mainstream methodologies and thorough documentation of general acceptance. The standard's emphasis on community consensus may limit innovation but provides predictability and protection against unreliable methods. As the legal landscape continues evolving, practitioners must remain adaptable, prepared to satisfy either standard while maintaining the highest levels of professional rigor. Understanding Frye is not merely historical interest—it remains important for practice in nearly a quarter of U.S. jurisdictions.

References

Case Citations

• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
• Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
• Mercado v. Ahmed, 974 N.Y.S.2d 503 (App. Div. 2013).
• People v. Kelly, 17 Cal. 3d 24 (1976).
• Reed v. State, 283 Md. 374 (1978).
• State v. Porter, 2014 IL App (1st) 121902.

Secondary Sources

• Bernstein, D. E. (2013). The misbegotten judicial resistance to the Daubert revolution. Notre Dame Law Review, 89, 27–70.
• Cheng, E. K. (2011). The myth of the generalist judge. Stanford Law Review, 61, 519–572.
• Giannelli, P. C. (1980). The admissibility of novel scientific evidence: Frye v. United States, a half-century later. Columbia Law Review, 80, 1197–1250.
• Ireland, T. R. (2012). Frye v. Daubert: Logical empiricism and reliable science. Journal of Forensic Economics, 23(1), 1–13.
• National Association of Forensic Economics. (2023). Survey of forensic economic practice. Retrieved from https://nafe.net
• Schwartz, A., & Silverman, I. (2005). The rise and fall and rise of Frye. Jurimetrics, 45, 131–152.