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PA Bulletin, Doc. No. 04-648

THE COURTS

Title 225--RULES OF EVIDENCE

[225 PA. CODE ART. VII]

Order Adopting Revision of Comment to Rule 702; No. 335 Supreme Court Rules; Doc. No. 1

[34 Pa.B. 2065]

Order

Per Curiam:

   Now, this 1st day of April, 2004, upon the recommendation of the Committee on Rules of Evidence, this proposal along with a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the comment to Rule of Evidence 702 is hereby revised in the following form.

   This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective May 10, 2004.

Annex A

TITLE 225. RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 702. Testimony By Experts.

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Comment

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   Adoption of Pa.R.E. 702 does not alter Pennsylvania's adoption of the standard in Frye v. United States, 293 F. 1013 (D. C. Cir. 1923), which requires scientific evidence to have ''general acceptance'' in the relevant scientific community. See Commonwealth v. Dunkle, supra; Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). In 1993, the United States Supreme Court held that Frye was superseded in the federal courts by the adoption of F.R.E. 702. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). [Pennsylvania courts have not yet decided whether the rationale in Daubert supersedes or modifies the Frye test in Pennsylvania. Commonwealth v. Crews, 536 Pa. 508, n.2, 640 A.2d 395 (1994).] In Grady v. Frito-Lay, Inc., ____ Pa.____, 839 A.2d 1038 (2003), a majority of the Pennsylvania Supreme Court rejected the Daubert standard and affirmed the applicability of the Frye standard in the Pennsylvania state courts.

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FINAL REPORT

Comment Revision of Pa.R.E. 702

   On April 1, 2004, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted the changes to Pa.R.E. 702 comment effective May 10, 2004. This change is made to alert the legal profession that the Supreme Court has affirmed the Frye standard for the admissibility of expert testimony. In so doing, the Supreme Court rejected the Daubert standard. Heretofore, Pennsylvania courts had not decided whether the rationale in Daubert superseded or modified the Frye test. That question has now been answered in Grady v. Frito-Lay, Inc.,__ Pa.__, 839 A.2d 1038 (2003).

[Pa.B. Doc. No. 04-648. Filed for public inspection April 16, 2004, 9:00 a.m.]


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