Monday, September 9, 2019
In May, the Supreme Court of Florida dispensed with the Frye test for determining the admissibility of expert evidence and adopted the Daubert standard. The Frye standard determines the reliability/admissibility of evidence solely based upon whether the expert technique/technology has general acceptance on the relevant expert community (e.g., whether testimony by an arson expert is based upon a technique that has general acceptance on the arson investigation community). By way of contrast, under the Daubert standard, the judge acts as gatekeeper to the admission of expert evidence and determines reliability by considering factors such as
(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
Recently, however, there were rehearing requests filed by the Code and Rules of Evidence Committee of The Florida Bar and Jacksonville attorneys Howard Coker and James Holland.
In a June motion for rehearing, the Bar committee pointed to the Supreme Court making the change without going through a typical process for setting rules.
“While it is clear the (Supreme) Court supports the content of the Daubert amendments as a rule of evidence, there has been no input from any member of the bench, the bar, or the citizenry that accounts for the change,” the committee’s motion said.
The (Supreme) Court, in this case, revisited the final administrative decision without giving any notice or opportunity to be heard to practitioners or the public who are ‘on the ground’ using the rules.”