Florida Supreme Court Considers Expert Witness Standard Changes

Three years ago, Florida legislators passed a controversial bill that affected almost every kind of court case in the system – including criminal cases. The change involved the standard to which expert witnesses are held in court. Their expert qualifications, their methodology, their testimony – all of this came under greater scrutiny when justices did away with the previous “Frye Standard” and instead adopted the “Daubert Standard,” which is used in federal courts and in most other states. gavel21

This was largely deemed a positive move for two groups: Criminal and corporate civil defendants. However, personal injury lawyers and some state attorneys have taken issue with it. The Florida Bar is the group that has asked the Florida Supreme Court to consider reverting back to the Frye Standard.

The Frye standard asks the judge to consider whether to allow expert witness testimony into evidence based only on whether the it represents principles that are considered generally accepted in that particular field. The Daubert standard, meanwhile, requires judges to use a more stringent standard. Judges are asked to allow the expert witness testimony only if it’s based on sufficient facts or data, if it’s the product of reliable methods and principles and the expert witness has applied the methods and principles of the case correctly. Often, this requires something of a mini-trial before the trial.

Plaintiffs in personal injury lawsuits say it’s unfair because it makes it harder for their clients to gain courtroom access. It also increases the costs of these cases, drags out the timeline and ultimately results in less payout for their clients.

Criminal defense lawyers, however, tend to like the standard because it can be used to hold police crime labs more accountable. It could also be used to raise questions about the methodology and practices of drug-sniffing dogs or arson testing, just to cite a few examples.

One of the issues justices are considering is whether they should keep the Daubert standard in place in the civil system while not using in the criminal system. They have indicated that while a decision is pending on this issue, courts should use the more stringent Daubert standard.

The issue was placed before the court after the Florida Bar Association’s Board of Governors and the Code and Evidence Rules Committee voted to reject the legislature’s ruling and go back to Frye. This sparked an intense debate within the legal community, but ultimately, both the board and the committee voted against the legislation. They argued the one-factor Frye standard had been working well and pushing courts to use the more intensive Daubert standard wasn’t necessary, and the state court system is underfunded as it is. Further, clients of lesser means aren’t going to have the resources to ensure their cases get a fair shot. One attorney arguing against the Daubert standard noted there are cases of judges holding Daubert hearings on Saturdays because there is literally no other time to have them during the week.

When confronted with the fact that federal courts seem to be coping just fine with the standard, opponents noted federal judges have access to many more resources.

Whichever way the court rules, the fact is if you are accused of a serious crime, it’s likely expert witnesses may be called in to testify against you – and possibly on your behalf. You will need an experienced defense attorney to make sure your rights are protected.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Expert witness standard takes center stage at Florida Supreme Court, Sept. 1, 2016, By Jim Rosica, SaintPeters Blog

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