Frye-Daubert Flip Flops in Florida

For years, the Florida Supreme Court rebuffed suggestions that it adopt the standard for scientific evidence that the U.S. Supreme Court articulated for the federal judiciary in Daubert v. Merrell Dow Pharmaceuticals, 1/ Instead, it "repeatedly reaffirmed [its] adherence to the Frye standard for admissibility of evidence." 2/

In 2013, the Florida legislature passed a statute to replace Frye with the "reliability" wording of Federal Rule of Evidence 702 -- wording intended to codify Daubert and its progeny. Some Florida courts concluded that this brought Florida into the ranks of jurisdictions that use the Daubert standard of "evidentiary reliability" based on "scientific validity." 3/ However, the Florida Supreme Court has held that only it can implement "procedural" changes to the Florida Rules of Evidence (FLRE). 4/ The legislature has the power to promulgate "substantive" rules of evidence, but it may not force "procedural" ones down the judiciary's throat.

So the Florida Bar's Code and Rules of Evidence Committee reviewed the law. By a narrow margin, it recommended leaving Frye in place. The Florida Supreme Court agreed. It declined to adopt the Daubert amendment "due to the constitutional concerns raised" by certain Committee members and commenters. 5/ "Those concerns," the court explained, "include undermining the right to a jury trial and denying access to the courts." 6/ The next year, in DeLisle v. Crane Co., 7/ the court confirmed that the legislative switch to Daubert was purely procedural. Because the court did not bless it, the law was constitutionally ineffective.

Then last month, the court flip-flopped. It adopted the "Daubert amendments" under its "exclusive rule-making authority." 8/ Although the amendment to Rule 702 did not percolate through the rules committee a second time, the court decided that its earlier reservations about switching to Daubert "appear unfounded." 9/

Indeed, the arguments that the court considered "grave" two years ago are anything but. The two standards -- general scientific acceptance (Frye) and evidentiary reliability encompassing scientific validity (Daubert) -- each seek to screen out expert evidence that is insufficiently validated to warrant its use in court in light of the danger that it will be given too much weight. One standard (Daubert) asks judges to assess directly the validity of scientific theories. The other (Frye) has them do so indirectly, by looking only for a consensus in the scientific community. This difference in the mode of analysis does not make one approach constitutional and the other unconstitutional. Daubert does not create an inherently more demanding test than Frye. 10/ It describes more criteria for answering the same underlying question -- is the proposed evidence probative enough to come in as "science" (or some other form of expertise).

Certainly, there is room to debate the relative merits of the two approaches -- and room for different jurisdictions to go their own ways -- but the choice between Daubert and Frye (or other reasonable standards) does not pose a serious constitutional question.

NOTES

1. 509 U.S. 579 (1993).
2. Marsh v. Valyou, 977 So.2d 543, 547 (Fla. 2007) (holding that the "general acceptance" standard fashioned in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and expressly adopted in Florida in Bundy v. State, 471 So.2d 9, 18 (Fla.1985), and Stokes v. State, 548 So.2d 188, 195 (Fla.1989), does not even apply to "pure opinion" testimony "causally linking trauma to fibromyalgia ... based on the experts' experience and training").
3. Perez v. Bell So. Telecommunications, Inc., 138 So.3d 492, 497 (Fla. Dist. Ct. App. 2014). The phrases "evidentiary reliability" and "scientific validity" appear in the Daubert opinion.
4. DeLisle v. Crane Co., 258 So.3d 1219 (Fla. 2018).
5. In re Amendments to Florida Evidence Code, 210 So.3d 1231, 1239 (Fla. 2017).
6. Id.
7. 258 So.3d 1219 (Fla. 2018).
8. In re Amendments to the Florida Evidence Code, No. SC19-107, 2019 WL 2219714 (Fla. May 23, 2019). Thanks are due to Ed Imwinkelried for calling the case to my attention.
9. Id.
10. The Florida Supreme Court had previously written that Frye imposed a "higher standard of reliability" than the "more lenient standard" in Daubert. Brim v. State, 695 So.2d 268, 271–72 (Fla. 1997). It is tempting to ask how Daubert's "more lenient" reliability requirement could be unconstitutional when Frye's more exacting standard is constitutionally sound. I suppose one could argue that because Frye (as construed in Florida)  does not bar "pure opinion" testimony that has not been shown to be scientifically reliable, it has less of an impact on "access to the courts." However, as discussed in The New Wigmore on Evidence: Expert Evidence (2d ed. 2011),  the "pure opinion" exception to either Frye or Daubert is untenable.