- The fate of the standard in Florida covering the admissibility of expert
witnesses in civil and criminal cases is now in the hands of the Florida
Sept. 1, the seven members of the high court heard arguments both supporting
and opposing a standard enacted by the state legislature in 2013, the Daubert
by the business community, the Daubert standard is considered a more rigid test
of determining whether an expert witness should be permitted to testify; it requires
relevant opinions grounded in reliable methodology. The former, long-held
standard in Florida, the Frye standard, allows testimony based on general
acceptance in the particular field in which it belongs. It’s easier under Frye for
plaintiffs to get damaging expert testimony before a jury. It’s the plaintiff bar’s
Florida Bar’s Board of Governors recommended the high court strike Daubert and
revert to Frye.
W. Hogan, a member of the Bar’s Code and Rules of Evidence Committee (CREC), told
the court that the Florida Legislature was out of line enacting the standard in
the first place, a change that was made based on the argument that it would rid
the court room of junk science.
a procedural matter,” Hogan said. “And it’s important to understand that the
Supreme Court makes these rules.”
further said that Florida case law has consistently re-affirmed Frye as the
Justice Barbara J. Pariente said that she “is not seeing” that the issue is
entirely procedural; it’s substantive as well.
legislature has authority over substantive changes in the law.
see both in this,” she said.
later in the hearing, sponsor of the bill, Rep. Larry Metz (R-Yalaha), said
that he sees both aspects in the law as well, and that it’s important not to
get caught up in who has jurisdiction over deciding the standard, but rather what
constitutes the better standard.
of evidence have always been a collaborative effort with the legislature and
courts,” Metz said.
also argued that the Daubert standard is time consuming, costly, and that it’s
already clogging Florida’s courts.
being used as a tactical weapon,” said plaintiff’s attorney Howard C. Coker of
Jacksonville. “Simple causations are now being challenged.”
argued that Daubert has been the standard in federal courts for 23 years, and
“we don’t have a parade of horribles coming from there.”
suggested that if Daubert is being misused then it’s better to target the misuses
than strike the entire standard.
point argued at the hearing is that different outcomes have emerged between
criminal and civil litigation.
Some said that
Daubert has been more constructive in civil litigation, than in criminal trials
because defendants lose a majority of Daubert motions.
John E. Morrison, speaking for the Florida Public Defender Association, said it was imperative that the
Daubert apply across the board.
man was executed in Texas (2004) after being convicted of an arson fire that
killed his three children,” Morrison said. “They convicted him based on pure
opinion. Later evidence brought in the case showed he was wrongly convicted.”
the Florida Bar appeared as though it would recommend that the Court adopt
Daubert. In two straw votes in 2013, the CREC overwhelmingly favored Daubert.
But halfway through 2014, the terms of one-third of the members of CREC expired,
and they were replaced. Daubert then lost out in a subsequent vote. The Board
of Governors agreed with CREC’s final recommendation.
Supreme Court has received hundreds of comments regarding Daubert.
them were from William W. Large, president of the Florida Justice Reform
Committee (CREC) serves an important purpose but it is neither a democratic
institution nor a constitutionally established, coordinate branch of government.”
Large stated. “Its members are not elected and have no constituency. Where the
committee’s recommendation conflicts with the considered judgment of the
legislative branch, the committee’s recommendation is entitled to no precedence
over the legislative will.”
court gave no indication when it might rule.