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  1. The Test for Scientific Evidence. In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the Supreme Court held that nothing in the Federal Rules indicates that “general acceptance” is a precondition to admission of scientific evidence. The rules assign the task to the judge to ensure that expert testimony rests on a reliable basis and is relevant. The judge assesses theprinciples and methodologies of such evidence pursuant to Rule 104(a).
    1. The role of the judge as a “gatekeeper” leads to a determination of whether the evidence is based on a methodology that is “scientific,” and therefore reliable. The judgment is made before the evidence is admitted, and entails “a preliminary assessment of whether the reasoning
      or methodology is scientifically valid.” Trial court possessed with broad
      discretion in admitting expert testimony; rulings tested only for abuse of
      discretion. General Electric Co. v. Joiner, 118 S. Ct. 512 (1997). See
      also United States v. Kaspers, 47 M.J. 176 (1997); United States v.
      Sanchez, 65 M.J. 145 (2007).
    2. Factors. The Supreme Court discussed a nonexclusive list of factors to
      consider in admitting scientific evidence, which included the Frye v.
      United States, 293 F. 1013 (D.C. Cir. 1923) test as a separate

      1. whether the theory or technique can be and has been tested;
      2. whether the theory or technique has been subjected to peer
        review and publication;
      3. whether the known or potential rate of error is acceptable;
      4. whether the theory/technique enjoys widespread acceptance.
    3. Non-Scientific Evidence. The Supreme Court resolved whether the judge’s
      gatekeeping function and the Daubert factors apply to non-scientific evidence.
      In Kumho Tire v. Carmichael, 119 S. Ct. 1167 (1999), the Court held that the
      trial judge’s gatekeeping responsibility applies to all types of expert evidence.
      The Court also held that to the extent the Daubert factors apply, they can be used
      to evaluate the reliability of this evidence. Finally, the Court ruled that factors
      other than those announced in Daubert can also be used to evaluate the reliability
      of non-scientific expert evidence.
    4. Other Factors. Other factors courts have considered to evaluate the reliability of
      scientific and non-scientific testimony include:

      1. Was the information developed for the purpose of litigation?
      2. Did the expert unjustifiably extrapolate facts to support conclusions?
      3. Are there alternative explanations?
      4. Is the expert being as careful as they would be in their regular
        professional work outside paid litigation?
      5. Is there a well-accepted body of learning in this area?
      6. How much practical experience does the expert have and is there a close
        fit between the experience and the testimony?
      7. Is the testimony based on objective observations and standards?

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