Professor Rice discussed how to get novel scientific evidence into court. He gave a history of the tests used by courts to determine whether certain technology could be admitted into court. In Frye v. United States (293 F. 1013, 1014), the court set the test for getting scientific evidence into court, referred to as the Frye test. The Frye test stated that, to be permissible, evidence had to have general acceptance by the relevant scientific community. The Federal Rules did not address the admissibility of novel scientific evidence so all courts followed the Frye test.
During the Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 589) trial, the court came up with a series of factors for evaluation. The factors considered in the Daubert were: 1) testing of the theory or techniques; 2) peer review (after publication); 3) error rate (known or potential); and 4) general acceptance in the relevant scientific community. In the Frye test of general acceptance, the court would have looked at all of these factors, so it is essentially the same test. As Professor Rice phrased it, "Daubert is essentially Frye in drag!!" Professor Rice then posed the question of why we require science to have a 98% accuracy rate when we are determining culpability on the preponderance of the evidence and could we use a lower standard of reliability for scientific evidence in the legal context? Professor Rice insisted that the scientists must become involved in the process to clarify for the lawyers what data and at what level of accuracy is sufficient to use in a court case.