The Florida Paper
| The Florida Judicial Education Conference | Leading Florida Cases
State of Judicial Gatekeeping in Florida
Written by: Daniel S. Fridman - Harvard Law School '99
Science represents the promise of a judicial
system that consistently finds the truth and fairly metes out justice in
every case. From DNA evidence1,
to neutron activation analysis, to radioimmunoassay analysis2,
to toxic torts, science is the key to convicting dangerous criminals which
previously had to be freed and to placing liability for disease causing
chemicals in cases where victims would previously have gone uncompensated.
The unremitting danger that keeps this scientific utopia from becoming
a reality is that science, with its complexity and novelty can be easily
misevaluated, or worse - faked. Equally hazardous is our reliance
on science as a black box containing all the solutions we need; while
the science present in a case may be legitimate and properly interpreted,
it could still be inadequate to yield the answers we ask of it. Today,
judges almost need an engineering degree along with their law degree to
fully understand and evaluate the scientific methods and results attorneys
are proposing to show juries. This is the difficult task before the
judicial gatekeeper. This series of essays will attempt to address
these important issues and provide some thoughts as to how judges around
the nation are dealing with their role as gatekeeper. What follows
is a brief synopsis of the judge’s role as a judicial gatekeeper in Florida.
Frye - Florida’s
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.
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
"general acceptance" standard survived the enactment of the more liberal
Federal Rules of Evidence.
This question was answered in the 1993 case,
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
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
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.
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
These four steps are the basic regime applying Florida statutory and case
law. Some of the nuances underlying these steps have been fleshed
out in cases subsequent to Ramirez.
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
[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
. . . . 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
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
"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
. . . 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
Brim, 695 So. 2d at 272.
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.
Florida has given precendential value to previous
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.
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.
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.
the Future of Daubert in Florida?
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
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
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
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
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
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).
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).