by W. H. Lindgren

Created on: April 17, 2010

A Daubert Hearing is an evaluation by a trial judge on the admissibility of defined "expert," or scientific and technical, testimony and evidence. The Daubert Hearing is conducted out of the jury's presence and is usually based on a motion in limine, which occurs before the trial even begins and determines which evidence or testimony will be presented to the jury. It is most efficient if the Daubert motion take place after the discovery phase so the hearing is completed before the trial starts. [The preferred Daubert family pronounciation is 'dow-bert' rather than the French style.]

The term comes from "Daubert v. Merrill Dow Pharmaceuticals," 509 U.S. 579 (1993), a Supreme Court case which determined the standards for expert testimony as set by enactment of the "Federal Rules of Evidence" in 1975. The decision modified a previous case from the District of Columbia Court of Appeals, "Frye v. United States," 293 F. 1013 (1923), which established the "Frye test." A very important note: Daubert applies specifically to all federal courts but to only approximately half of the state courts, while the other half of the states still use the Frye test. The Daubert decision was modified by "Kumho Tire Co. v. Carmichael," 526 U.S. 137 (1999), in the sense that expert testimony is not limited to only scientific evidence and testimony, but can include other areas of expertise.

In all of the decisions concerning the issue of expert testimony, the most fundamental application is that the judge is the so-called "gatekeeper" in deciding the admissibility of evidence that may be presented to the jury. As a result, judges are placed in positions where they have to determine whether an expert really is one, whether the evidence or testimony actually applies to the case at trial, establish that the science is based on results that developed through the scientific method, or whether a technical (non-scientific) expert has relevant experience in the area at issue.

Prior to the Daubert Hearing process, it was common for courts to allow "dueling" experts who would present their evidence or testimony and then the jury would decide the relevance or accuracy of the testimony. The Frye test required that the expert testimony had to meet a standard of "general acceptance" in the specific area or subject field of the evidence. This tended strongly to exclude new or cutting edge evidence that had not existed long enough to become either generalized or accepted.

Perhaps the main advantage

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