June 21, 2019

On May 23, 2019, the Supreme Court of Florida (“Florida Supreme Court”) voted to amend the Florida Evidence Code to replace the Frye standard for admitting certain expert testimony with the Daubert standard, which is the standard for expert testimony found in Federal Rule of Evidence 702.

Florida Supreme Court Reverses Its Own Position From 2017

Previously, in 2017, at the recommendation of the Florida Bar’s Code and Rules of Evidence Committee, which had voted 16 to 14, the majority of the Florida Supreme Court had declined to adopt the Daubert amendments, to the extent that they are procedural, solely due to the constitutional concerns raised by the Committee members and commenters who opposed the amendments. The Florida Supreme Court stated at that time that it had “grave constitutional concerns.”

Frye vs. Daubert

Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, the more stringent Daubert standard provides that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”

The Florida Supreme Court stated in adopting the Daubert standard: “in accordance with this Court’s exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature, we adopt the amendments to sections 90.702 and 90.704 of the Florida Evidence Code made by chapter 2013-107, sections 1 and 2. Effective immediately upon the release of this opinion, we adopt the amendments to section 90.702 as procedural rules of evidence and adopt the amendment to section 90.704 to the extent it is procedural.”

The Amendments To Section 90.702 And To Section 90.704

Chapter 2013-107, section 1, Laws of Florida, amended section 90.702, Florida Statutes (2012), to read as follows: “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 or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case; [however, the opinion is admissible only if it can be applied to evidence at trial].”

Chapter 2013-107, section 2, Laws of Florida, amended section 90.704, Florida Statutes (2012), to read as follows: “The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.”

A dissenting opinion stated: “in my view Frye is the superior standard for determining the reliability of expert testimony … 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 … Daubert and its progeny drastically expanded the type of expert testimony subject to challenge. Whereas Frye is limited to “new or novel scientific evidence.”

The dissenting opinion further stated: “I agree with the Committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts. Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case … I firmly believe Frye more adequately protects the constitutional rights of the parties. Accordingly, I dissent from the decision of the majority to adopt the Daubert amendments and recede from our 2017 decision.”


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