The Florida Bar

Florida Bar News

Frye standard endorsed by Board of Governors

Senior Editor Regular News

Frye standard endorsed by Board of Governors

Florida Supreme Court will have the final say

Senior Editor

Florida courts should continue to use the Frye standard for evaluating expert witnesses and testimony rather than switching to the Daubert criteria favored by the Florida Legislature, according to the Bar Board of Governors.

The board, at its December 4 meeting in Naples, gave its stamp of approval to the recommendation by the Code and Rules of Evidence Committee that the Supreme Court should not adopt into the state’s evidence rules the Legislature’s 2013 law amending the evidence code to use the Daubert standard for qualifying expert testimony.

CREC had made its recommendation by a 16-14 vote; the board approved the committee’s position by a 33-9 margin. The Legislature’s actions would have specifically overruled previous Florida Supreme Court rulings upholding the Frye standard for expert testimony. The board heard extensive presentations on both sides of the issue and asked questions at itsOctober meeting, but reserved debate and a vote for its December meeting.

CREC must file its proposal with the board’s recommendation with the court by February 1.

Critics of Frye — including many defense lawyers and business interestssay it is too relaxed and can allow junk science in the courtroom, while critics of Daubert —including prosecutors and plaintiff attorneys — say it can lead to repeated challenges of accepted scientific standards and numerous expensive and time-wasting “mini-trial” type hearings before a case actually goes to trial.

Jack Hickey Board member Jack Hickey told the board that most of his practice is in federal courts, which use the Daubert standard and nearly every case has extensive preliminary hearings over expert testimony. State courts, with their tight funding and much higher caseloads, simply won’t be able to handle the work, he said.

Frye is a very strict standard as interpreted by the Florida Supreme Court,” Hickey said.

But Carlos Martinez, an ex officio board member and the 11th Circuit public defender, said some criminal defendants have been wrongly convicted under Frye because of faulty expert testimony.

“We have hair analysis, bite mark, and bullet lead which have all been discredited and all came in under Frye,” Martinez said. “In that context, we could not challenge any of those things. . . . Things that get in under Frye are problematic. Once they are generally accepted, even if they are generally accepted junk science, you cannot get it out. You cannot fight it.”

Board member Bruce Robinson said he’s watched litigation costs rise for his 43 years in practice, adding that Daubert will only add to that problem.

“The system has to be at a cost level that the average citizen can afford,” he said.

Board member Paul SanGiovanni said he’s already seen an increase in Daubert hearings in state courts since the Legislature’s action, leading to higher client costs and which courts lack enough resources to handle. He echoed other board members in saying the Legislature was infringing on the Supreme Court’s prerogatives in seeking to force a switch from Frye to Daubert.

“The change from Frye to Daubert is a solution looking for a problem,” SanGiovanni said. “This is a fight that was picked by the Legislature against our Supreme Court, which has said over and over it wants the Frye standard and the Legislature has decided to challenge that.”

Board member Michael Hooker noted, “The most compelling argument for Frye is it [Daubert] will block the court system; it will prevent litigants with cases from reaching court. The most compelling argument for Daubert is a more modern standard which is used by much of the rest of the country.

“I come down on the side of Daubert,” he added, “because I think it is the best standard for ensuring that only reliable expert testimony reaches a jury. If the Florida Supreme Court does convert to a Daubert standard, I would hope the Florida Legislature would be more receptive for a greater expenditure. . . for judicial resources needed by Daubert.”

Board member Andy Sasso agreed: “I believe Daubert is the better standard and would improve the administration of justice in Florida.”

Wayne Helsby Board member Wayne Helsby, who noted he is a defense attorney, said, “I don’t think this is a plaintiff lawyer versus a defense lawyer issue. I think it’s an access to courts issue.. . . This is going to deny a lot of people access to the court system. In a day and age when we are trying to get more people access, this is going to do the opposite.”

Daubert was intended to make easier the rules that all of the states had at that time,” said board member Steve Echsner, but added it fails at that goal.

He said in 35 years of practice, he had had one hearing on a Frye issue but now faces Daubert hearings about routine and straightforward matters in a case.

“It’s become abusive. It’s turned an opinion from an expert who is subject to cross examination. . . on issues under Daubert for issues that judges don’t want to deal with pretrial [and] that should be decided by a jury,” Echsner said. “There is simply no reason at this point in time to change it.”

The board sought feedback from Bar members on the issue and 668 attorneys registered their opinions. Of them, 470, or 68.3 percent, opposed the court adopting Daubert while 213, or 31 percent, favored it. Five were undecided.

Several companies, including Caterpillar and CSX Transportation, sent letters to the Bar supporting the Daubert standards.

The vote by the Code and Rules of Evidence Committee marks one of the few times it has recommended that a legislative enactment to the evidence code not be adopted as an evidence rule to the extent it is procedural.

CREC occupies a unique position among the various Bar rules committees. Other committees focus on making procedural rules for specific areas, such as family, civil, or criminal law that are distinct from the respective statutes. CREC deals with the evidence code in F.S. Chap. 90. This statute is considered to have two interpretations: substantive that falls under the purview of the Legislature and procedural, which is under control of the Supreme Court, yet the text is identical.

The committee reviews legislative enactment of amendments to the code and generally recommends the court approve those changes to the extent they are procedural, to avoid litigation over those issues. When the committee does not recommend that action, it is generally because it believes the Legislature has crossed the boundary from substantive to procedural issues.

That was an issue, when the Legislature enacted its Daubert bill in 2013, with witnesses at some House and Senate committee hearings warning the court could find the qualifying of experts a procedural matter and overrule the legislative action.

News in Photos