Issues of Law Raised by Developments and Use of Neuroscience and Neurotechnology in National Security and Defense - Neurotechnology in National Security and Defense - page 146

The U.S. federal courts have long entertained division over what legal standard
can and should be employed to guide the admissibility of expert testimony of scien-
tific evidence. The leading case, Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509
U.S. 579, 113 S.Ct. 2786 (1993), overturned a prior, narrower standard (see below).
The case turned on the Supreme Court's interpretation of Federal Rule of Evidence
(FRE) 702, which provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training or education may testify thereto in the form
of an opinion or otherwise …

The decision makes the District Judge the gatekeeper for deciding the admissibility
of experts offering testimony on scientific evidence and the techniques and technolo-
gies they employ. The Court set forth a three-part test for admissibility, which asserts
the following:

• The testimony must be about scientific knowledge. It must be grounded in

knowledge and achieved through the use of the scientific method.

• The scientific knowledge must assist the trier of fact in understanding the

evidence or determining a fact that is at issue. The trier of fact may be the
judge or a jury. Being “helpful” requires establishing a valid scientific con-
nection to the pertinent inquiry before the Court.

• The judge is entitled to make the initial determination as to whether certain

scientific knowledge would assist the trier of fact as contemplated by FRCP
702. Critically, and much influenced by the sophisticated “friend of the
court” briefing in the case from a diverse group of scientists, scholars, phy-
sicians, historians, and sociologists of science that relied on philosophical
notions as much as legal precedent, the Court drew a distinction between
evidence rooted in the judicial process and aimed at resolving a dispute that
aimed at and the search for scientific truth. 31

The Daubert standard varies sharply from a competing view advanced in a 1923
case, Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), in which the Circuit Court
held that expert testimony as to scientific evidence was admissible only where “the
thing from which the deduction is made … is sufficiently established to have gained
general acceptance in the particular field in which it belongs.” The Frye court
declined to allow the testimony of an expert as to the results of a systolic blood pres-
sure test, a predecessor to the modern polygraph.
Daubert ruled that its standard overruled Frye 's restricted view for federal cases.
As an interpretation of FRE 702, it does not bind state courts. Although a products'
liability case involving the combination drug pyridoxine/doxylamine, marketed
under the brand name Bendectin , it raised larger issues about the relationship of
science and law that are highly relevant to evaluating what standards of evidence
govern neuroscientifically and neurotechnologically based and/or derived evidence.