JUDICIALGATEKEEPING IN FLORIDA

Frye - Florida’s Standard
     In 1923, the D.C. Circuit announced its landmark decision about expert opinion testimony based on novel scientific procedures in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  Frye became the federal standard for judges to apply in evaluating scientific evidence.  In Frye, a defendant in a murder trial attempted to show his innocence by using a lie detector test that measured systolic blood pressure.  The court excluded the evidence, reasoning that the lie detector test was unreliable because the scientific principle upon which it was based was not "sufficiently established to have gained general acceptance in the particular field in which it belongs."3Id. at 1014.  The implication is that one "expert" scientist testifying to the accuracy of the lie detector would not be enough, a large community of scientists must accept the test in order for the judge to allow the jury to hear the evidence. In Florida, the Frye general acceptance standard was specifically adopted in the context of a lie detector test in the 1952 case Kaminski v. State, 63 So. 2d 339 (Fla. 1952).4   Since then, all novel scientific evidence in Florida has been held up to the Frye standard.

Daubert and the Florida Rules of Evidence
     When the Federal Rules of Evidence were enacted in 1975, they liberalized the attitude toward the admission of evidence by giving trial judges much broader discretion than they previously had.  Rule 104(a) allows the judge to determine whether an expert can testify, and Rule 702 guides this determination by requiring the judge to decide whether the testimony will aid the jury's factfinding and whether the witness is qualified as an expert.  Finally, Rule 403 allows the judge to exclude evidence if its likely prejudicial effect outweighs its probative value.  The question was then to what degree the arguably conservative Frye "general acceptance" standard survived the enactment of the more liberal Federal Rules of Evidence.

     This question was answered in the 1993 case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993) (where the plaintiffs sought to introduce evidence that birth defects had been caused by mother’s ingestion of the anti-nausea drug Bendectin).  The Court held that Rule 702 did in fact supersede the Frye standard, and adopted a new standard to instruct judges on their gatekeeping role.  This new role requires from the judges a two step process to determine the reliability and relevance of the evidence: "[a] preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."5   The Court presented a non-exhaustive list of five factors a court can weigh when deciding whether to admit the evidence: (1) whether the theory or technique is testable or falsifiable, (2) whether the method has been subjected to peer review, (3) whether the rate of error is too high, (4) the existence and maintenance of standards controlling the technique’s operation, and (5) whether the method has received "general acceptance."6   Here "general acceptance" becomes one of many factors the court can choose to consider.

     Significantly, Florida’s own rule of evidence concerning expert testimony, Rule 90.702, is nearly indistinguishable from the Federal Rule of Evidence 702 (which superseded Frye).7  However, Florida courts have not interpreted Rule 90.702 as superseding Frye.  Instead, Florida has continued to embrace the Frye general acceptance test, specifically rejecting Daubert’s relevancy / reliability approach.  This rejection occurred shortly after the Daubert decision in the context of a criminal trial in the case of Flanagan v. State, 625 So. 2d 827 (Fla. 1993).  In Flanagan, the prosecution sought to introduce profile testimony showing that the characteristics of home environments where child abuse commonly occurs were present in Flanagan’s home. Id. at 828.  This testimony was rejected when the court found after a review of  the relevant academic literature that "sexual offender profile evidence is not generally accepted in the scientific community and does not meet the Frye test for admissibility."  Id.  In a footnote, the court dismisses the impact of Daubert without much explanation: "We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. [citing Daubert] However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions. Stokes v. State, 548 So. 2d 188 (Fla. 1989)."  Id. at n2.

     In the more recent case of Brim v. State, 695 So. 2d 268, 271-72 (Fla. 1997), the Supreme Court of Florida once again reaffirmed its commitment to Frye, but did shed some light on why it had not chosen to adopt Daubert: 

We start by emphasizing again that the Frye test is utilized in Florida to guarantee the reliability of new or novel scientific evidence. . . .  Despite the federal adoption of a more lenient standard in Daubert, [citation omitted] we have maintained the higher standard of reliability as dictated by Frye. E.g., Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). (emphasis added)

The Court considers the Daubert standard more lenient, but is it?  Daubert does give the judge greater discretion to admit scientific evidence because there are criteria other than "general acceptance" that may be satisfied to successfully admit a particular piece of evidence.  On the other hand, taken as a whole, Daubert may subject scientific evidence to stricter scrutiny by the judge, giving her more criteria on which to throw evidence out.8

How Does Frye Currently Work in Florida?
     Under current state law, the admission into evidence of expert opinion testimony concerning novel scientific principles is governed by a four step process recently articulated by the Supreme Court of Florida in  Ramirez v. State, 651 So. 2d 1164, 1167 (Fla. 1995)9  (citations omitted):

First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact at issue.10   Ramirez at 1167.

Second, the trial judge must decide whether the expert's testimony is based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs."11Ramirez at 1167. 

[Third] . . . is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on the subject at issue.12   Ramirez at 1167.

     . . . . Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and then it is up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject.13Ramirez at 1167. 

General Acceptance Defined - And Confused?
     Before it went to the Florida Supreme Court, the 2nd District Court of Appeal in Brim had expressed dissatisfaction with the Frye standard and seemed to advocate something closer to Daubert: "it may be that a general relevancy test, one that does not limit the admissible scientific evidence to that reflected by one unanimous view, would be a more preferable, and perhaps realistic, test in such situations." Brim v. State, 654 So. 2d 184, 187 (Fla. 2d DCA 1995).  In addressing this concern on review of Brim, the Florida Supreme Court explained that:

. . . scientific unanimity is not a precondition to a finding of general acceptance.14    Instead, general acceptance in the scientific community can be established "if use of the technique is supported by a clear majority of the members of that community."15   "Of course, the trial courts, in determining the general acceptance issue, must consider the quality, as well as the quantity, of the evidence supporting or opposing a new scientific technique.  Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value . . . ."16

Arguably, the Court does seem to blur the lines between the "general acceptance" standard and Daubert when it states that the quality (relevance / reliability) of the evidence must be considered along with the quantity (general acceptance) of scientists supporting the procedure. 

Judicial Notice
     Florida has given precendential value to previous Frye decisions through judicial notice.  For example, in Hayes v. State, 660 So. 2d 257 (Fla. 1995), the Supreme Court of Florida took judicial notice that that the first step of the DNA testing process, if conducted properly, would satisfy the Frye test.17  This first step applies molecular biology and chemistry to indicate that two DNA samples look the same. 

Burden of Proof
     In Florida’s Frye test, the burden is on "the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand."  Ramirez 651 So. 2d at 1168.  Additionally, general acceptance must be established by a preponderance of the evidence.  Id. 

Standard of Review
     When reviewing Frye decisions, Florida uses de novo review to examine lower court evidentiary determinations.18   This was decisively determined when the Florida Supreme Court in Brim agreed with the first district’s conclusion in Vargas that the standard of review should be de novo instead of abuse-of-discretion: "[An abuse-of-discretion standard] would prohibit an appellate court from considering scientific material that was not part of the trial record in its determination of whether there was general acceptance within the relevant scientific community."  Brim 695 So. 2d at 274.  One of the main reasons cited for making the review so comprehensive is the possibility that Frye determinations could become the law of the jurisdiction, therefore, to use a more deferential standard could lead to inconsistent treatment of similar claims.  Id.

What is the Future of Daubert in Florida?
    In the search for the ideal standard, Florida promises to produce some vibrant debates on the judge’s gatekeeping responsibility.  With Florida’s own district courts continuing to acknowledge the importance of Daubert in their opinions while being constrained by Flanagan to only apply Frye and with the federal courts in Florida already applying Daubert, Florida will continue to experience a tension between the two standards.  Plaintiffs may try to remove cases to the federal system to take advantage of Daubert, while defendants may prefer the more conservative state courts.19   Even without the Daubert tension, there are still questions about Frye that remain to be answered:
 

• [P]recisely which field of the "scientific community" must find the evidence acceptable? 
• Assuming such a field is identifiable, what percentage of that "community" must find the evidence acceptable to satisfy the "generally accepted" standard? 
• Exactly what must be accepted, the underlying scientific principle, the technique applying it, or both?20

These issues are not easy to resolve; however, like the science itself, the law of judicial gatekeeping in Florida will continue to evolve and improve to meet the challenges of the next century.  With debate and wisdom, we may eventually find the way to bridge the gap between scientists and judges.

1  Vargas v. State, 640 So. 2d 1139 (Fla. 1st DCA 1994) (where the court sustained a challenge to FBI DNA population frequency statistics based on contrary expert evidence and judicial opinions from other jurisdictions to show the data was not generally accepted in the scientific community).
2  Bass v. Florida Department of Law Enforcement, 627 So. 2d 1321 (Fla. 3d DCA 1993) (where the court held that the exclusion of expert testimony proffered by a county employee to explain how a false positive reading for cocaine could have been obtained on a urinalysis test was in error because radioimmunoassay analysis of human hair is generally accepted in the scientific community).
3  In addition to general acceptance, "[t]hree other grounds were commonly used to support the denial: that polygraph results would be 'unduly persuasive' to juries, that admitting the results would lead to a time-consuming and confusing 'trial of the lie detector,' and that polygraph results are not accurate."  James McCall, Misconceptions and Reevaluation - Polygraph Admissibility After Rock and Daubert, 1996 U. Ill. L. Rev. 363, 369 (1996).
4  Since 1952, polygraph results have been held per se inadmissible as a matter of law in Florida based on their failure to satisfy the Frye general acceptance test.
5  Id. at 2796. 
6  Id. at 2796-97.
7  Compare FLA. R. EVID. 90.702 (1996), "If  scientific,  technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial." with FED. R. EVID. 702 (1996) "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."
8  For a more thorough discussion of this issue see infra, "Is Daubert a Liberalizing or Constraining Change from Frye?"
9  In Ramirez, the court reversed defendant's murder conviction because defendant was not allowed to present evidence at a pre-trial hearing refuting State's evidence of reliability of a test that connected knife marks on cartilage to a knife linked to the defendant.
10   Section 90.702, FLA. STAT. (1993) (adopted by the Florida Supreme Court in In re Florida Evidence Code, 372 So. 2d 1369 (Fla. 1979)).
11   Frye, 293 F. at 1014.  Adopted in Bundy v. State, 471 So. 2d 9, 18 (Fla. 1985), cert. denied, 479 U.S. 894; Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989). Reaffirmed in Brim v. State, 695 So. 2d 268 (Fla. 1997).
12   Section 90.702, FLA. STAT. (1993).
13   Wuornos v. State, 19 Fla. L. Weekly S455, S459 (Fla. Sept. 22, 1994) ("The finder of fact is not necessarily required to accept [expert] testimony.").
14  People v. Dalcollo, 699, N.E.2d 378, 387 (Ill. App. Ct. 1996).
15  People v. Guerra, 690 P.2d 635, 656 (Cal. 1984).
16  People v. Leahy, 882 P.2d 321 (Cal. 1994).
17  For more information about judicial notice in Daubert hearings, see infra, "Daubert Hearings and Precedent."
18  For more information about standard of review in Daubert hearings, see infra, "Appellate Review of Daubert Hearings."
19  Although this is a view shared by many plaintiff and defense lawyers, it is still debatable whether Daubert truly helps plaintiffs the most.
20  Mark R. Kapusta, Daubert Versus Flanagan Comparing Standards for the Admissibility of Scientific Evidence in Florida State and Federal Courts, 68-Dec Fla. B.J. 38, 40 (1994).