Is Maryland drifting toward Daubert ? The Court of Special Appeals of Maryland seemed to confirm (or re-confirm) this as recently as in Sissoko v. State. There, the Court of Special Appeals determined that the trial court properly admitted expert testimony from prosecutors about abusive head trauma in infants.
A quick refresher on Daubert: under Federal Rule of Evidence 702, a court will look at the following factors to determine whether scientific testimony (i.e., both methodology and conclusions) is reliable: (1) whether the technique has been tested; (2) whether it has been subjected to peer review or publication; (3) the known or potential error rate; and (4) whether the technique is generally accepted. Courts applying Daubert have also synthesized the Daubert factors down to an inquiry into whether there is an analytical gap between the data (or facts presented at trial) and the expert’s ultimate conclusion.
The predecessor to Daubert was, of course, the Frye, or “general acceptance,” test that is still nominally used in Maryland. 293 F. 1013 (D.C. Cir. 1923). Under Frye, expert testimony regarding a novel scientific technique is admissible, so long as the technique is generally accepted in the scientific community. Over the past decade, however, Maryland’s Court of Appeals has described itself as “drifting” toward Daubert.
What does this mean? As the Court of Special Appeals recently confirmed in Sissoko, Maryland courts allow the use of the Frye “general acceptance” test to evaluate both scientific methods and scientific conclusions, as well as applying the “general acceptance” analysis to both established and novel scientific methods. Maryland courts have also explicitly adopted the “analytical gap” concept from federal law and have looked to Daubert cases in past cases as persuasive authority in determining whether an analysis was “generally accepted.”
In Sissoko, a man appealed his conviction of murder and child abuse, arguing that the trial court incorrectly allowed prosecutors to introduce expert testimony on shaken baby syndrome (now called abusive head trauma) because such a diagnosis was no longer generally accepted. On appeal, all parties accepted the fact that the “differential diagnosis process” that physicians use to diagnose medical conditions is generally accepted. What the Court of Special Appeals focused on, however, was whether the prosecutors’ experts’ analysis was sound.
To make such a determination, the court applied what was essentially a Daubert analysis. The Court of Special Appeals recognized that the “underlying methodologies” used to study and diagnose abusive head trauma, namely scans, exams, and autopsy, are “not even controversial.” Thus, the techniques to diagnose abusive head trauma had been tested and were concededly generally accepted, satisfying the first and fourth Daubert factors. The court then summarized the history of shaken baby syndrome/abusive head trauma and pointed to numerous peer-reviewed articles that described the symptoms and causes of abusive head trauma. In doing so, the court satisfied the second prong of the Daubert factors. After analyzing this information, the court determined that certain criteria that the experts used are “highly correlated” with abusive head trauma and noted the specific percentages of cases in which a baby was shaken and injury was caused. This appears to satisfy the Daubert factor regarding the known error rate—if 80%–90% of admittedly shaken babies have the same or similar injuries, then 10%–20% of the time, the cause of such injuries could be something other than shaking/abusive head trauma.
The Frye standard is on the wane. For instance, in late 2016, the D.C. Court of Appeals dropped Frye and adopted the Daubert standard in Motorola Inc. v. Murray. Maryland courts are already applying the Daubert factors, even if they do not explicitly state as much. Indeed, the Court of Special Appeals in Sissoko seems to have drifted almost completely into Daubert territory. It appears that it is only a matter of time until Maryland’s Court of Appeals accepts the case-by-case “drift” toward Daubert, discards Frye and adopts Daubert.
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