Challenging Novel Expert Testimony Under Florida Law

Florida Follows Frye

Florida Rule of Evidence Section 90.702 governs the admissibility of expert testimony:

 [i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as a n expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to the evidence at trial.    

Florida Evidence Code, §90.702 (West. 2009 Rev.)  Under Section 90.702, it is important to first determine whether the evidence sought to be admitted is based on some novel scientific procedure, formula or principle.  If so, Florida courts have steadfastly adhered to the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) to determine the admissibility expert evidence based on novel science  Back in 1953, the Florida Supreme Court first adopted a the “Frye” test in a case involving the admissibility of polygraph results.  Kaminski v. State, 63 So.2d 339 (Fla. 1953).   This standard requires that “. . . . before new scientific evidence is admissible, there must be  testimony establishing that such new scientific principle or discovery  is sufficiently established to have gained general acceptance in the particular field in which it belongs.”  See e.g.-State v. Vargas, 667 So.2d 175, 178-9 (Fla. 1995). [1]   Even after the U.S. Supreme Court decision adopting the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 585 (1993) in applying the Federal Rules of Evidence, the Florida Supreme Court continued to uphold the application of Frye for the Florida Evidence Code.  Flanagan v. State , 625 So.2d 827, 829 (Fla. 1993).  In Flanagan, the Florida Supreme Court, analyzing the admissibility of profile sex offender test results, stated “[w]e are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test [citing to Daubuert,  509 U.S. at 585]. . . . However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions.”  Flanagan, 625 So.2d at 829 n. 2 . 

Burdens Under Frye

The Florida Supreme Court has also held that an examination under Frye is only necessary where the party against whom expert scientific testimony is offered challenges that evidence.  Hadden v. State, 690 So. 2d 573, 580  (Fla. 1997) (in other words, a party opposing such evidence must move to exclude it).   Further, any inquiry into the reliability of expert scientific evidence must be made timely and be supported with authorities indicating a lack of general acceptance.  Correll v. State, 523 So.2d 562, 567 (Fla. 1988) cert. denied, 488 U.S. 871 (1988).  Further, the trial judge has the “sole responsibility” to determine the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle.  Ramirez v. State, 651 So.2d 1164, 1168 (Fla. 1995).   In addition, at the adversarial Frye hearing, the burden is on the party seeking to introduce such evidence and the standard preponderance of such evidence.  Id. at 1168.

In Ramirez, the Florida Supreme Court also held that determination of admissibility requires multiple steps for the trial court.  Id. at 1167.  The trial judge must: (1) determine whether the testimony will assist the jury; (2) decide whether the expert’s testimony is based on a scientific principle or discovery that is sufficiently establishes to have gained general acceptance in the particular field in which it belongs; (3) determine whether a witness is qualified as an expert to present such opinion testimony; and (4) allow expert to render an opinion so that a jury may determine the expert’s credibility.   Id

On the second step above, the Florida Supreme Court further clarified, in a later case, that general acceptance does not require unanimity, rather that burden can be met be demonstrating that the technique, principle or methodology at issue is supported “’by a clear majority of the members of that community.’”  Brim v. State, 695 So.2d 268, 272 (Fla. 1997) (citing People v. Guerra, 37 Cal.3d 385, 208 Cal. Rptr. 162, 183, 690 P.2d 635, 656 (1984)).   In Brim, the Florida Supreme Court made clear that a “clear majority” is not based merely on a ‘nose count’ but rather the trial court should look to the quantity and quality of evidence supporting or opposing a new technique. Id. (“ ‘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. . . .” citing to  People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 678, 882 P.2d 321, 336-37 (1994)). 

In addition, it is important to note that the proponent of evidence being sought to be introduced under Frye must only establish that the new scientific principles or methodologies relied upon are generally accepted in the relevant scientific community; the expert’s opinions themselves do not have to be.  U.S. Sugar Corp. v. Henson, 823 So.2d 104, 110 (Fla. 2002) (“Under Frye, the inquiry must focus only on the general acceptance of the scientific principles and methodologies upon which an expert relies in rendering his or her opinion.  Certainly, the opinion of the testifying expert need not be generally accepted as well.”  Id.)

The foregoing is not intended as legal advices and is provided for informational purposes only.

[1] The oft-quoted language on standards from Frye is  “[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages 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 discovery, 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.“ Frye,  293 F. at 1014.