How Have Maryland Courts Been Applying Rule 5-702 After Adopting Daubert Standard?

By: Derek M. Stikeleather | 10.14.22 | Media

This article originally appeared in the Maryland Bar Journal (Maryland State Bar Association), Volume 4, Issue 1.

Maryland will soon pass the second anniversary of the Court of Appeals' landmark Rochkind v. Stevenson opinion. The 2020 decision formally adopted the Daubert standard for admitting expert testimony under Rule 5-702 and retired the Frye-Reed standard. Yet, many judges and practitioners are still trying to discern how much Rochkind has changed everyday trial practice in Maryland. The question eludes simple answers.

So far, it appears that Rochkind has sensitized trial judges to their non-delegable gatekeeping duties to test the reliability of every expert opinion that comes before the court. Although these duties have existed since Rule 5-702 was enacted in 1994 – and been re-affirmed through decades of "jurisprudential drift" towards a Daubert standard – the starkness of formally retiring the Frye-Reed standard and adopting Daubert has sent judges a clear message that they must directly engage with and test the expert opinions that come before their court and not simply defer to well-credentialed experts with relevant subject-matter expertise. For judges that have historically skimmed past Rule 5-702 inquiries and passed most questions to jurors as going merely to the "weight of the evidence," more is now expected.

The Supreme Court's landmark 1993 Daubert decision triggered a small panic in the federal judiciary because it held that, for almost two decades after Federal Rule of Evidence 702's enactment in 1975, most federal courts had erred by continuing to apply Frye's general-acceptance test. Frye had applied to only a subset of expert opinions, those that were both "novel" and "scientific," and limited the court's inquiry to whether the opinion or method was "generally accepted" in the relevant scientific community. Generally accepted opinions were admissible, opinions not generally accepted were inadmissible.

Frye's binary approach reflected the prevailing twentieth-century view that, because judges are not scientists, they cannot reasonably be expected to analyze novel, scientific opinions for analytical gaps, methodological errors, or undue speculation. Instead, judges could fairly be asked only to corroborate an opinion or methodology's general acceptance in the relevant scientific community. (Of course, such reasoning never explains how lay jurors, who are virtually never scientists in the same relevant field, could reliably identify analytical gaps, methodological errors, or undue speculation, if judges presumably could not do so.) Once general acceptance was established, the Frye inquiry was ended.

Although the indirect general-acceptance test had the immediate virtue of simplicity — until complex fights erupted over whether an opinion was truly novel or truly scientific — it was a crude, imprecise tool. By analogy, imagine a law firm or government agency that decides that it lacks the expertise to discern which law school graduates will flourish there as professional attorneys, so it screens and hires only applicants with the highest grades from the most prestigious law schools. This indirect approach to finding the "best" attorney candidates is not entirely irrational. Some might even argue that it aptly describes traditional hiring practices. But few would argue that it is a better approach to hiring than meaningful direct inquiries into each candidate's skills and potential as a practicing attorney (personal interviews, writing samples, experience, references of former co-workers and professors, plus grades and credentials).

Daubert and Rochkind stand for the same principle: direct inquiry into the reliability of an expert opinion is superior to an indirect inquiry into its mere general acceptance. But a better way is not always an easier or faster way. Just as hiring lawyers exclusively by their credentials is faster and easier than a plenary review of a candidate's qualities, experience, and potential, the flexible Daubert-Rochkind inquiry often requires that the judge dig deeper into a challenged opinion to understand how it is constructed both methodologically and factually. With Frye-Reed's retirement, expert opinions are no longer treated as beyond a legally trained judge's ability to comprehend.

For Maryland trial judges and practitioners, Rochkind has triggered a less intense reaction than Daubert had for federal judges in 1993, but the reaction has a familiar echo. Rochkind’s final step was not much of a leap for trial judges who had kept pace with two decades of evolving Maryland Frye-Reed and Rule 5-702 case law, which had penultimately settled upon a shared "analytical gap" test. But the adoption of Daubert sounded an alarm for those who had been approaching Rule 5-702 as merely ensuring the challenged witness's relevant qualifications. Parties should no longer bank on withstanding an expert challenge by submitting a stack of purportedly supportive texts, studies, or papers and suggesting that the issue is too fact-intensive for the court to decide pre-trial and should be left for the jury to decide.

Going forward, Maryland courts are likely to look for some limiting principle to prevent every one-week trial from being preceded by two weeks of Rochkind hearings. For guidance, courts should look to federal case law and procedure, which has managed for almost thirty years of Daubert to avoid having expert challenges overwhelm trials. Rochkind seems likely to demand more from courts and practitioners, but its direct focus on what really matters in an expert opinion — its reliability — should benefit everyone seeking justice in civil and criminal trials.