MOTION TO EXCLUDE EXPERT TESTIMONY (FRYE)

[IN THE _____________ COURT]

[FOR THE COUNTY OF _____________]

[STATE OF _____________]

Case Caption:

[________________________________]
Plaintiff(s),

v.

[________________________________]
Defendant(s).

Case Number: [________________________________]

Judge: Hon. [________________________________]

Department: [________________________________]

[PLAINTIFF'S/DEFENDANT'S] MOTION TO EXCLUDE

EXPERT TESTIMONY OF [EXPERT NAME]

PURSUANT TO THE FRYE STANDARD

NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on [__/__/____], at [____] a.m./p.m., or as soon thereafter as the matter may be heard, in Department [____] of the above-entitled Court, located at [________________________________], [Plaintiff/Defendant] [________________________________] ("Movant") will move the Court for an order excluding the expert testimony of [________________________________] ("the Expert").

This motion is made on the grounds that the Expert's testimony is based on a theory, method, or technique that has not gained general acceptance in the relevant scientific community, and therefore fails to satisfy the Frye standard for admissibility of expert evidence.

This motion is based on this Notice, the attached Memorandum of Points and Authorities, the Declaration of [________________________________], the exhibits attached hereto, the pleadings and papers on file in this action, and such other matters as may be presented at the hearing.

Dated: [__/__/____]

Respectfully submitted,

[________________________________]
Attorney for [Plaintiff/Defendant]
[________________________________]

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

[Plaintiff/Defendant] [________________________________] ("Movant") respectfully moves this Court to exclude the expert testimony of [________________________________] because the Expert's opinions are based on theories, methods, or techniques that have not gained general acceptance in the relevant scientific community as required under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The Expert proposes to testify regarding [________________________________]. However, the methodology underlying this testimony—[________________________________]—has not been generally accepted by [________________________________] and therefore does not satisfy the Frye standard.

II. STATEMENT OF FACTS

A. Procedural History

1. This action was filed on [__/__/____].

2. [Opposing party] designated [________________________________] as an expert witness on [__/__/____].

3. The Expert submitted a report dated [__/__/____] (attached as Exhibit A).

4. [Add additional procedural facts]

B. The Expert's Background

5. The Expert is a [________________________________] who has been retained by [opposing party] to provide opinions regarding [________________________________].

6. According to the Expert's curriculum vitae (attached as Exhibit B):

a. [________________________________]

b. [________________________________]

C. The Expert's Proffered Testimony

7. The Expert intends to testify that:

a. [________________________________]

b. [________________________________]

c. [________________________________]

8. The Expert's opinions are based on the following theory/method/technique:

[________________________________]
[________________________________]

D. Lack of General Acceptance

9. The theory/method/technique employed by the Expert has not gained general acceptance in the relevant scientific community because:

a. [________________________________]

b. [________________________________]

c. [________________________________]

III. LEGAL STANDARD

A. The Frye Test

In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court established the "general acceptance" test for the admissibility of scientific evidence:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

Id. at 1014 (emphasis added).

B. Elements of the Frye Standard

Under the Frye standard, expert testimony based on a scientific technique or theory is admissible only if:

☐ (1) The technique or theory must be scientific in nature;

☐ (2) The technique or theory must be generally accepted;

☐ (3) The acceptance must be within the relevant scientific community;

☐ (4) The particular expert must have properly applied the generally accepted technique.

C. "General Acceptance" Defined

"General acceptance" does not require universal acceptance or acceptance by all scientists in the field. However, it requires more than acceptance by a small minority or isolated group of practitioners.

☐ The technique must be accepted by a substantial portion of the relevant scientific community
☐ Acceptance by the expert alone, or a few experts, is insufficient
☐ The relevant community is the field in which the technique belongs

D. Relevant Scientific Community

The "relevant scientific community" consists of those scientists or professionals who:

☐ Work in the field in which the technique was developed
☐ Have expertise to evaluate the validity of the technique
☐ Are knowledgeable about the standards and practices in the field

E. Burden of Proof

The party offering the expert testimony bears the burden of demonstrating that the technique or theory has achieved general acceptance in the relevant scientific community.

F. Jurisdictional Application

This jurisdiction follows the Frye standard:

☐ California - People v. Kelly, 17 Cal.3d 24 (1976) (Kelly/Frye test)
☐ Illinois - Frye v. United States adopted; Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63 (2002)
☐ New York - Frye v. United States adopted; People v. Wesley, 83 N.Y.2d 417 (1994)
☐ Pennsylvania - Frye v. United States adopted; Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003)
☐ Washington - Frye v. United States adopted; State v. Copeland, 130 Wash.2d 244 (1996)
☐ Other: [________________________________]

IV. ARGUMENT

A. THE EXPERT'S METHODOLOGY IS SUBJECT TO FRYE ANALYSIS

1. The Expert's proposed testimony involves [novel scientific technique / scientific principle / specialized method] that is subject to Frye analysis.

2. [Describe why Frye applies to this testimony]

[________________________________]
[________________________________]
[________________________________]

3. The technique/theory at issue is: [________________________________]

☐ Novel scientific technique not previously subjected to Frye analysis
☐ Scientific principle that has not gained widespread acceptance
☐ Method that relies on assumptions not generally accepted
☐ Application of technique in a novel or unaccepted manner

B. THE EXPERT'S METHODOLOGY HAS NOT GAINED GENERAL ACCEPTANCE IN THE RELEVANT SCIENTIFIC COMMUNITY

1. Identification of the Relevant Scientific Community

The relevant scientific community for evaluating the Expert's methodology consists of:

[________________________________]
[________________________________]
[________________________________]

This community includes professionals who:

☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

2. Evidence of Lack of General Acceptance

The following evidence demonstrates that the Expert's methodology has not gained general acceptance:

a. Lack of Peer-Reviewed Support

[________________________________]
[________________________________]
[________________________________]

☐ No peer-reviewed articles support this methodology
☐ Peer-reviewed literature criticizes or rejects this methodology
☐ The methodology has not been published in reputable journals

b. Professional Organizations Have Not Endorsed the Methodology

[________________________________]
[________________________________]
[________________________________]

☐ [Professional organization] has not endorsed this methodology
☐ [Professional organization] has rejected or criticized this methodology
☐ No professional standards or guidelines support this methodology

c. Experts in the Field Do Not Accept the Methodology

[________________________________]
[________________________________]
[________________________________]

☐ Mainstream experts in the field reject this methodology
☐ Only a small minority of practitioners use this methodology
☐ The methodology is controversial within the scientific community

d. The Methodology Has Not Been Validated

[________________________________]
[________________________________]
[________________________________]

☐ Independent testing has not validated this methodology
☐ Validation studies have produced negative results
☐ The methodology's accuracy has not been established

3. Evidence That Only a Minority Accepts the Methodology

[________________________________]
[________________________________]
[________________________________]

☐ The Expert's own testimony reveals limited acceptance
☐ Literature review shows only isolated support
☐ Other experts reject or question this methodology

C. THE EXPERT FAILED TO PROPERLY APPLY AN ACCEPTED METHODOLOGY

Even assuming arguendo that the general methodology could be considered accepted, the Expert's specific application fails to meet the Frye standard because:

1. [________________________________]

2. [________________________________]

3. [________________________________]

☐ The Expert deviated from accepted protocols
☐ The Expert applied the methodology to an inappropriate context
☐ The Expert's application has not been validated

D. ADMISSION OF THIS TESTIMONY WOULD BE PREJUDICIAL

If admitted, the Expert's testimony would:

☐ Mislead the jury with an unproven scientific technique
☐ Create an aura of scientific certainty that is unwarranted
☐ Unfairly prejudice [Movant] because [________________________________]

E. ALTERNATIVE GROUNDS FOR EXCLUSION

In addition to failing the Frye test, the Expert's testimony should be excluded because:

☐ The Expert is not qualified to render these opinions
☐ The opinions are speculative
☐ The opinions are not relevant to the issues in this case
☐ The probative value is substantially outweighed by the danger of unfair prejudice
☐ Other: [________________________________]

V. SPECIFIC TESTIMONY TO BE EXCLUDED

Based on the foregoing, the following specific testimony should be excluded:

VI. REQUEST FOR FRYE HEARING

Movant respectfully requests that the Court conduct a Frye hearing to determine the admissibility of the Expert's testimony. At such hearing, Movant intends to present:

☐ Expert testimony regarding the lack of general acceptance
☐ Scientific literature demonstrating lack of acceptance
☐ Testimony from members of the relevant scientific community
☐ Evidence of the Expert's improper application of methodology

VII. CONCLUSION

For the foregoing reasons, [Plaintiff/Defendant] [________________________________] respectfully requests that this Court:

1. Grant this Motion to Exclude Expert Testimony;

2. Conduct a Frye hearing to evaluate the admissibility of the Expert's testimony;

3. Enter an order excluding the testimony of [________________________________] in its entirety, or in the alternative, excluding the specific opinions identified above;

4. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

Dated: [__/__/____]

[________________________________]
Attorney for [Plaintiff/Defendant]
Bar Number: [________________________________]
Firm Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

DECLARATION OF [________________________________]

I, [________________________________], declare as follows:

1. I am the attorney of record for [Plaintiff/Defendant] [________________________________] in this action. I make this declaration based on personal knowledge and, if called as a witness, could and would competently testify to the matters stated herein.

2. Attached hereto as Exhibit A is a true and correct copy of the Expert Report of [________________________________] dated [__/__/____].

3. Attached hereto as Exhibit B is a true and correct copy of the curriculum vitae of [________________________________].

4. Attached hereto as Exhibit C is a true and correct copy of [________________________________].

5. [Additional facts supporting the motion]

I declare under penalty of perjury under the laws of the State of [________________________________] that the foregoing is true and correct.

Executed on [__/__/____] at [________________________________].

[________________________________]
Declarant

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Motion to Exclude Expert Testimony, together with all supporting documents, was served upon all parties of record by:

☐ Electronic service
☐ Personal service
☐ Mail
☐ Other: [________________________________]

Served Upon:

[________________________________]
Attorney for [________________________________]
[________________________________]
[________________________________]

Signature: [________________________________]
Date: [__/__/____]

EXHIBITS

☐ Exhibit A: Expert Report of [________________________________]
☐ Exhibit B: Curriculum Vitae of [________________________________]
☐ Exhibit C: [________________________________]
☐ Exhibit D: [________________________________]
☐ Exhibit E: Declaration of [________________________________] (Expert on General Acceptance)

STATE-SPECIFIC NOTES

California (Kelly/Frye)

California follows the Kelly/Frye test under People v. Kelly, 17 Cal.3d 24 (1976). California Evidence Code Section 801(b) requires expert testimony be based on matter "of a type that reasonably may be relied upon by an expert."

Additional California Requirements:
- The proponent must establish the technique's general acceptance through expert testimony
- The proponent must establish the qualifications of the testifying expert
- The proponent must establish that correct procedures were used

Illinois

Illinois follows Frye under Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63 (2002). The test applies to novel scientific evidence.

New York

New York follows Frye under People v. Wesley, 83 N.Y.2d 417 (1994). The test focuses on whether the scientific community has generally accepted the principles underlying the proffered evidence.

Pennsylvania

Pennsylvania follows Frye under Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003). Novel scientific evidence must have gained general acceptance.

Washington

Washington follows Frye under State v. Copeland, 130 Wash.2d 244 (1996). The test applies to novel scientific evidence that is not traditional or familiar.

COMPARISON: FRYE vs. DAUBERT

PROPOSED ORDER

[PROPOSED] ORDER GRANTING MOTION TO EXCLUDE EXPERT TESTIMONY

Case Number: [________________________________]

The Court, having considered [Plaintiff's/Defendant's] Motion to Exclude Expert Testimony of [________________________________] pursuant to Frye v. United States, any opposition thereto, [and the evidence presented at the Frye hearing held on ___________,]

FINDS that the Expert's methodology [________________________________] has not gained general acceptance in the relevant scientific community of [________________________________];

IT IS HEREBY ORDERED that:

1. The Motion is GRANTED;

2. The testimony of [________________________________] is EXCLUDED [in its entirety / with respect to the following: _______________________];

3. [Additional rulings]

SO ORDERED this [____] day of [________________________________], 20[____].

___________________________________
Hon. [________________________________]
Judge of the [________________________________] Court

SOURCES AND REFERENCES

• Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
• Cornell LII - Frye Standard
• Expert Institute - Frye Standard Guide
• Expert Institute - Daubert vs. Frye
• People v. Kelly, 17 Cal.3d 24 (1976)
• Admissibility of Expert Testimony in All 50 States

This template is provided for informational purposes only and does not constitute legal advice. The Frye standard applies only in certain jurisdictions. Federal courts and most states follow the Daubert standard. Consult with a licensed attorney in your jurisdiction to determine the applicable standard and requirements.