Evidence – Supreme Court Declined to Adopt the Daubert Amendment

In Re: Amendments to the Florida Evidence Code, 2017 WL 6337700 (Fla.)

The Supreme Court of Florida declined to adopt several legislative amendments, including an amendment (Daubert Amendment) replacing the Frye standard for admitting expert opinion evidence with the Daubert standard.

The Daubert Amendment amended Florida Statutes § 90.702 and 90.704 (2012) and changed the standard of admissibility for scientific expert evidence.

Previously, Florida applied the Frye standard, which applies to expert testimony based on new scientific evidence and requires that it “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993), quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The United States Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that Federal Rule of Evidence 702 superseded Frye’s test. Federal Rule 702 provides that an expert witness may testify as to his/her opinion if the following is met:

(a) The expert’s scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principals and methods; and

(d) The expert has reliably applied the principals and methods to the facts of the case.

The Court in Daubert held that application of Federal Rule 702 requires the court to ensure that all scientific evidence is “not only relevant, but reliable.” Id. at 579.

First, the legislature amended 90.702 to mirror Federal Rule of Evidence 702, specifically eliminating the provision which stated “the opinion is admissible only if it can be applied to evidence at trial.” Second, the legislature added the following language to 90.704: “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.”

The Florida Bar’s Code and Rules of Evidence Committee recommended that the Supreme Court decline to adopt the amendments and raised what the Supreme Court felt to be “grave constitutional concerns:” the right to a jury trial and access to the courts. The Court published the Committee’s report for comment. The Court received fifty-six comments in favor of the Committee’s request and one hundred and thirty-one comments in opposition to the Committee’s recommendation. Based on the existence of constitutionality concerns, without addressing them specifically, the Court declined to adopt the Daubert Amendment.

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