Since 2013, Florida has been the center of a battle over admissibility standards for expert witness testimony.
Prior to a move by the legislature in 2013, Florida followed the Frye Standard (i.e. general acceptance test). This test is considered a more lenient in allowing for expert witness testimony.
Normally, this standard is preferred by plaintiff’s counsel and disliked by defense counsel. Much like the “general acceptance test,” my last statement is a generalization.
In 2013, the Florida Legislature passed a law changing the admissibility standard from Frye, to the federal standard commonly referred to as Daubert Standard. Rather than the general acceptance test, the judge as the gatekeeper, would apply a multi-pronged test to analyze the admissibility of expert evidence. Here are the prongs per Cornell Law:
- whether the theory or technique in question can be and has been tested;
- whether it has been subjected to peer review and publication;
- its known or potential error rate;
- the existence and maintenance of standards controlling its operation;
- whether it has attracted widespread acceptance within a relevant scientific community.
Most of our members are familiar with the Daubert Standard because it is the standard used by federal courts and more than three-quarters of US states. Naturally, my home state of California still uses Frye because we always want to do things a little differently. Well, according to the Florida Supreme Court ruling this week, Florida likes to do things differently as well.
To summarize, the Florida Supreme Court found the law implementing the Daubert Standard to be an unconstitutional infringement on the court’s authority by the legislature.
The decision was covered by CBS Miami, and the most pertinent part is as follows:
“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis and Jorge Labarga. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”
It was a 4-3 decision by the Florida Supreme Court and the Chief Justice offered an impassioned dissent. For our members practicing in Florida, the law is clear, the Supreme Court has decided Frye is the appropriate standard for Florida.