Ending the Daubert Debate

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable states is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discover, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Id. at 1014. (Emphasis added). Frye is the accepted standard for admissibility of expert opinions under Florida Rule of Evidence 90.702.

The Daubert Standard

Seventy years after the decision in Frye, in 1993, the United States Supreme Court issued its decision in Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786 (1993) in which it stated a different standard for the admissibility of expert opinions under FRE 702. In Daubert, the Supreme Court articulated five factors to be considered by trial courts in their role as “gatekeepers”:

1. Whether the scientific theory or methods on which the opinion is based have been or could be tested.
2. Whether the scientific theory or methods have been the subject of peer review.
3. The known or potential rate of error of the scientific method.
4. Existence of standards controlling the method’s operation.
5. Whether the theory or methods are generally accepted within the relevant scientific community.

In Daubert, the Supreme Court eschewed a rule of "general acceptance" in favor of a rule of "scientific soundness" wherein the trial court must assess the scientific validity of the theory in issue based on various criteria including general acceptance. See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) which held that Daubert is applicable to all expert testimony, even if the testimony is based on an expert's personal experience rather than on scientific knowledge.

Florida Steadfastly Follows the Frye Standard

The Florida Supreme Court has specifically rejected Daubert. Brim v. State, 695 So.2d 268 at 271 (Fla. 1997)(“We start by emphasizing again that the Frye test is utilized in Florida to guarantee the reliability of new or novel scientific”). Recently, in Ibar v. State, 31 Fla. L. Weekly S 149; 2000 Fla. LEXIS 383 (Mar. 9, 2006), the Supreme Court stated:

Ibar cites federal and other state cases that follow Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as the standard for the admissibility of experts’ testimony. Florida courts do not follow Daubert, but instead follows the test set out in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). [citation omitted]

Ibar at ______. See also, Hadden v. State, 690 So.2d 573, 577 (Fla.1997) ("The question of the appropriate standard of admissibility of novel scientific evidence of any kind following the adoption of the evidence code was resolved by this Court in favor of the Frye test."); Flanagan v. State, 625 So.2d 827, 829 n. 2 (Fla.1993) ("We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test.... However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions."); Stokes v. State, 548 So.2d 188, 193-94 (“this Court has continued to use the Frye test when evaluating novel scientific evidence proposed by the State even though the United States Supreme Court, in a civil case, has adopted a different rule”).

Contrary to the oft stated opinion that the standard set out in Daubert is more stringent that the Frye standard, Frye requires a higher standard of reliability than Daubert. In Brim, supra, the Florida Supreme Court stated:

"Despite the federal adoption of a more lenient standard in Daubert v. Merrill Dow Pharmaceuticals, Inc. [citation omitted], we have maintained the higher standard of reliability as dictated by Frye. [citation omitted]. This standard requires a determination, by the judge, that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community."

Id. at 271-272.

Application of the Frye Standard and Standard of Review

As a matter of course, where a Frye-type admissibility issue is raised, a hearing on the merits of the issue should be held before trial. Holy Cross Hosp., Inc. v. Marrone, 816 So.2d 1113 (Fla. 4th DCA 2002). Although the general focus under Florida law is on the reliability of the proffered expert testimony, Florida courts additionally require that both the basic underlying principles and the methodology of scientific evidence are "sufficiently tested and accepted by the relevant scientific community." Brim at 272 (Fla.1997), citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923); Cerna v. South Florida Bioavailability Clinic, Inc., 815 So.2d 652 (_________).

During a Frye hearing, the burden is on the proponent of scientific evidence to prove the general acceptance of the underlying scientific principle and the testing procedures used to apply that principle to the facts of the particular case. Brim at 272, quoting, Ramirez v. State, 651 So.2d 1164 at 1168 (Fla.1995). The trial judge has the sole responsibility to determine this question. Id. The general acceptance under the Frye test must be established by a preponderance of the evidence. Id.

On appeal, the review of a trial court decision admitting or excluding evidence based on Frye is de novo. Brim v. State, 695 So.2d 268, 275 (Fla.1997); Hadden, supra at 579; Kaelbel Wholesale, Inc. v. Soderstrom, 785 So.2d 539. “The Frye standard is not a direct measure of scientific trustworthiness. Instead, it is based on the assumption that the science will be trustworthy if scientists worthy of trust have published articles and made public statements in support of the scientific principle or procedure. Kaelbel at 546-547. Thus, we review the trial court's ruling on the admissibility of expert opinion testimony, which is purportedly based on an underlying novel scientific principle or technique, as a matter of law, rather than under an abuse of discretion standard”. Id. See also Vargas v. State, 640 So.2d 1139, 1144 (Fla. 1st DCA 1994) quashed on other grounds, 667 So.2d 175 (Fla.1995)¹ .

Through Frye and its extensive progeny in Florida, Florida courts have established efficient and well reasoned standards and procedures for application of the Frye test. In Ramirez, supra, the court delineated a four step process for applying Frye:

First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. 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.' Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). The third step in the process is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on subject in issue. Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject.

_____ So.2d at ______.

When applying the Frye test, a court is not required to accept a "nose count" of experts in the field. See, e.g., Brim, supra at 272 (Fla.1997) ( "[A] 'nose count' is not alone sufficient to establish general acceptance in the scientific community."); Charles W. Ehrhardt, Florida Evidence § 702.3 (2000 ed.) ("Merely counting a majority of the members of the relevant scientific community is not controlling."). "Of course, the trial courts, in determining the general acceptance issue, must consider the quality, as well as 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...." People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 678, 882 P.2d 321, 336-37 (1994).

In a Frye analysis, the court may peruse disparate sources--e.g., expert testimony, scientific and legal publications, and judicial opinions --and decide for itself whether the theory in issue has been "sufficiently tested and accepted by the relevant scientific community." See, e.g., Hadden v. State, 690 So.2d 573, 579 (Fla.1997) ( "An appellate court may examine expert testimony, scientific and legal writings, and judicial opinions in making its determination."). In gauging acceptance, the court must look to properties that traditionally inhere in scientific acceptance for the type of methodology or procedure under review--i.e., "indicia" or "hallmarks" of acceptability. A bald assertion by the expert that his deduction is premised upon well-recognized scientific principles is inadequate to establish its admissibility if the witness's application of these principles is untested and lacks indicia of acceptability.

The Frye Standard is Effective and Efficient.

The stringency of the Frye test, and its effectiveness in weeding out “junk science” is demonstrated by the many cases and contexts in which expert testimony has been excluded under the Frye standard. See, e.g., Murray v. State, 692 So.2d 157 (Fla.1997) (barring evidence based on PCR DNA testing); Hadden v. State, 690 So.2d 573 (Fla.1997) (barring evidence of child abuse syndrome); Hayes v. State, 660 So.2d 257 (Fla.1995) (barring evidence based on DNA band-shifting technique); Flanagan v. State, 625 So.2d 827 (Fla.1993) (barring evidence of offender profile syndrome); Stokes v. State, 548 So.2d 188 (Fla.1989) (barring evidence based on hypnotically refreshed memory); Davis v. State, 520 So.2d 572 (Fla.1988) (barring evidence based on polygraph examinations). Ramirez v. State, 651 So.2d 1164 (Fla.1995). (barring evidence of knive mark “matching” or identification).

In Stokes v. State, 548 So.2d 188, 193-94 (Fla.1989), the Florida Supreme Court stated the very sound theory underlying Florida’s steadfast reliance on Frye to weed out “junk science”. The court stated, “a courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use”. Stokes at 193-94.

In a 1997 treatise, Professors David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders, explained the different approaches of Frye and Daubert as follows:

. . . if Daubert is a significant break from the past, the departure lies in the changed focus of the admissibility determination. Frye asks judges to decide the admissibility of scientific expert testimony by deferring to the opinions of scientists in the "pertinent field." Thus, under Frye, judges need not have any facility with scientific methods to make the admissibility decision. They must merely have some basis for knowing what scientists believe. Under Daubert, the trial court itself is initially responsible for determining the admissibility of scientific expert testimony by determining that the science supporting that opinion is valid. Modern Scientific Evidence: The Law and Science of Expert Testimony § 1-3.3 (1997

* * *

Whereas Frye require[s] judges to survey the pertinent field to assess the validity of the proffered scientific evidence, Daubert calls upon judges to assess the merit of the scientific research supporting an expert's opinion." Id. at Preface p. viii.

Efforts to Legislatively Override the Florida Supreme Court’s Well Reasoned Adherence to Frye Should Thwarted

During the 2006 Legislative session, a House Bill was proposed that, if adopted into law, would have forced all Florida courts to abandon the Frye test in favor of the Daubert test. House Bill 1603 provided, among other things:

(8) INTERPRETATION. - - In interpreting and applying this act:

(a) The courts of this state shall follow the opinions of the United States Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. V. Carmichael, 526 U.S. 137 (1999); Weisgram v. Marley, 528 U.S. 440 (2000); and their progeny.

Although the judicial opinions cited in H.B. 1603 all related to the application of Federal Rule of Evidence 702, H.B. 1603 proposes that Florida courts be forced to apply the reasoning in those cases to Florida Rule of Evidence 90.702. Aside from being an improper attempt to usurp the power of the Florida judiciary, the proposals in H.B. 1603 would represent bad public policy.

First and foremost, since Daubert was decided in 1993, application of the Daubert standard has proven to be too burdensome on overloaded state court dockets. Rather than the relatively short Frye hearing in which the trial court must simply decide hears whether a particular theory or method is “generally accepted”, Daubert hearings are more likely to go on for days or even weeks. Moreover, it has required both state and federal judges to make decisions about whether or not a proposed opinion is “good science” without being properly trained or otherwise qualified to make these judgments. As Chief Justice William Rehnquist stated in is dissenting and concurring opinion in Daubert:

I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role.

Daubert, _________ (J. Rehnquist, dissenting).

While there was a strong trend in favor of adopting the Daubert standard for several years after the decision was rendered, a clear reversal of that trend is taking shape. In addition to Florida, Supreme Courts in Arizona² , California³, Illinois⁴ and New York⁵ have also rejected the Daubert standard in favor of Frye. An informal poll of state trial lawyers’ associations in all fifty states revealed that 15 states adhere to the Frye standard and 6 others have adopted a modified Frye standard.

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¹ Conversely, an abuse of discretion standard of review applies to the review of a trial court's determination of admissibility under Daubert. General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

²Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000).
³People v. Leahy, 882 P.2d 321 (Cal. 1994).
⁴Donaldson v. Central Illinois Public Service Comm., 767 N.E.2d 314 (Ill. 2002).
⁵People v. Wesley, 633 N.E.2d 451 (NY 1994).