Supreme Court of Florida Adopts the Daubert Test for Admitting Expert Evidence

On May 23rd, the Supreme Court adopted the Daubert test for the admission of expert evidence in In re Amendments to the Florida Evidence Code. Just two years ago, that same court had rejected the Daubert by a close 16-14 vote. So, what does the change mean?

With the change, the Supreme Court has kicked the Frye test to the curb. The Frye test is a test of judicial deference to expert communities. It is a single criterion test in which a judge determines the admissibility of expert evidence by asking whether the technique or technology used to produce that evidence has general acceptance in the relevant expert community. Therefore, on the one hand, if the technique of comparing bite marks has general acceptance by forensic odontologist, but mark comparisons are inadmissible even if those comparisons can’t withstand external scrutiny. Conversely, of the technique of comparing a vein pattern on the back of a hand in a video to a suspect’s vein pattern doesn’t have general acceptance in the biometric community, vein pattern comparisons are inadmissible even if there is external evidence of their reliability.

By way of contrast, under the Daubert test, the judge serves as gatekeeper in determining the admissibility of expert evidence. In the Daubert case itself, the Supreme Court gave five examples of factors a judge might consider in deciding the admissibility of expert evidence:

(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.

This is not to say that a judge in a given place will apply all or only these factors; indeed, when the Daubert case was remanded, the Ninth Circuit placed particular emphasis on whether a drug study was done independently or with an eye toward litigation.

But the five factors listed by the Supreme Court give you an idea of what a judge can do with Daubert. First, even if a technique like bite mark comparison has general acceptance in a particular expert community, if other factors such as the error rate, cause concerns, the judge can deem the evidence inadmissible. Second, even if a new technique or technology doesn’t yet have general acceptance in a particular expert community, the judge can still allow in evidence if, for instance, there has been recent peer review testing that has produced a low error rate.

-CM