In re Amendments to the Fla. Evidence Code, SC16-181 (Fla. Feb. 16, 2017).
The Florida Supreme Court, in a stunning move, has decided 4 to 2 not to go along with the legislature’s 2013 decision to replace the Frye standard for admissibility of expert testimony with the Daubert standard now used in the federal system and, to some extent, in 36 states. While the legislature has the power to enact substantive law, the Florida Supreme Court has the power to determine procedural court rules. Therefore, the Court can overrule a legislative act “to the extent that it is procedural.”
That’s exactly what the Court does in its opinion, which is not based on an actual case, but is a decision on whether to adopt certain procedural rules. The practical implications of the Court’s opinion will have to be fleshed out in future cases involving real, live plaintiffs and defendants, or as the Court said: “we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy.”
The Frye test dates to 1923. In its Florida incarnation, it provided that “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’” The Daubert test, adopted by the U.S. Supreme Court in 1993, employed a weighing of several factors by which the trial judge, acting as a “gatekeeper,” could measure the “reliability” (a key word in the Daubert analysis) of proffered scientific evidence in order to exclude unreliable evidence from consideration.
The Florida Supreme Court rejected the Daubert test based on “grave constitutional concerns” related to access to courts and the right to a jury trial. The anti-Daubert argument is that the test has created too high a hurdle for plaintiffs to overcome in order to admit experts who are favorable to their cases. It often drags out pre-trial litigation, to the detriment of moderate- or low-income plaintiffs. Daubert, it is said, often makes a lawsuit impractical, even if meritorious, thus denying access to courts. Furthermore, Daubert takes much of the weighing of evidence away from juries and gives it to judges, thus undermining the right to a jury trial.
On the other side, attorney Timothy M. Moore of Miami has argued in favor of the Daubert test: “There is no question that Daubert is the superior standard,” Moore said. “Besides being more stringent, it puts a judge in more of a gatekeeper role. Frye, and another standard used in some instances that relied on pure opinion (Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)), could result in bringing in someone who claims to be an expert by just hanging a shingle.”
My take: The Daubert/Frye controversy should ideally be decided on the basis of which test would more efficiently aid a jury in discovering the truth of a disputed matter. The argument in Florida, however, seems to have become a political one, with parties choosing sides based on which test they believe will benefit them more: plaintiffs and their attorneys favor Frye, while defendants and their attorneys favor Daubert.
In a law review article in 2004, I argued in favor of a revamped Frye test over the Daubert test: “The basic insight of Frye, which requires general acceptance in the scientific community, is that there is no extra-scientific standpoint from which judges can gauge the reliability of scientific evidence and that scientists are better prepared to make this assessment than are judges.” While there are flaws in the Frye test, Daubert may have gone too far with its cumbersome approach and its too-great reliance on the scientific acumen of judges who generally are not, and do not pretend to be, scientists.
— Tom Regnier, February 21, 2017
 Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993).
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