Expert testimony court bill hits legislative snag

Feb 8, 2012

Opponents of a bill to change Florida’s standard for evaluating expert witness testimony are doing everything they can to stop the legislation from moving forward in the Florida House. As Sascha Cordner reports, just after the bill was about to pass out of a House panel Wednesday, one lawmaker managed to halt the measure.

Under Florida law, the state’s court system uses a specific standard called the Frye standard to evaluate whether testimony of a particular expert witness should be admitted in a Florida court. The court usually decides based on if the witness is generally accepted in the scientific community.

However, House Bill 243 rejects that standard and instead, provides a three-part test instead called the Daubert standard. Republican Representative Larry Metz is the bill’s sponsor:

Daubert is based on a 1993 Supreme Court decision, which is now the law of the land for federal courts everywhere in the country, and in the majority of states. And, basically it’s a three-pronged test. Expert testimony would be evaluated first based on, would be required to have or be based on facts and data, second would be reliable principles and methods, and third would be that the principles and methods were reliably applied due to the facts of the case.”

Metz’s bill had the support of many business backed groups, like the Chamber of Commerce and Associated Industries of Florida. Another supporter, Tony Cochran with the Florida Justice Reform Institute, says as a former federal prosecutor, he used the Daubert standard on many occasions and it’s a standard that works with no cost to the state.

“I don’t believe the cost is going up. You don’t have to retrain folks. They need to read and apply the Daubert standard. You’re going to use the experts that you already have, which the state already has plenty of in their criminal laboratories. It’s not that you’re going to have to call more experts. It’s just that you’re going to call more experts, it’s that you’re going to have to use the experts that you already have who should have up to date methodology and explain the methodology that you’re already using.”

But, many of the opponents stated that implementing the Daubert Standard would increase costs. And, attorney from Palm Beach Gardens Leslie Kroeger says it also leaves attorneys at a disadvantage to fully help their clients.

“What you may not realize this bill does and the jury will do is the jury will not hear everything. You will have judges deciding arbitrarily based upon information and scientific things that they truly are not trained in and they truly should not be deciding, and they will decide that a jury will not hear the information.”

Most of the opposition to the bill came from state prosecutors, like State Attorney for the 5th Judicial Court Brad King, who, when questioned by a lawmaker, said the cost is a main concern:

“Lawmaker: Is it feasible that maybe not your office, but other state attorney’s office may not prosecute a case because of lack of resources?

Brad King: The risk will exist if the Legislature does not allocate the resources.”

But, Republican Representative Gayle Harrell says the cost is worth it and it should be funded:

"A lot of testimony about the cost, and that this is going to take five years to shake out and this is going to increase the cost, and are we, at the end of the day, going to wind up having guilty people go free because  it was too expensive to try them. And I have to tell you that justice is worth the cost. Whatever it costs to make sure we have appropriate science in our courtrooms is worth the cost."

Despite debate in favor of the proposal from Republican lawmakers, Democratic Representative Darren Soto says he doesn’t understand why his colleagues were ignoring the testimony from the prosecutors about the costs of transitioning to the new standard, especially since they already don’t’ fund the courts enough.

"Heard from the prosecutors, and they don't want it right now. That's because its going to make it more difficult, lead to more plea deals...and I think its pretty clear that's what's going to happen. We need to have faith in our jury at the end of the day, and if there is enough to go forward, as I believe there is in Fry, then we need to let them make the decision, not a judge."

Both Soto and Democratic Representative Steinberg tried to stall the bill repeatedly calling for a recess and trying to temporarily postpone the bill. But, each time a vote was taken, Republicans outnumbered Democrats. By the time, an official vote was taken, Representative Steinberg managed to delay the bill from moving on to the House floor by calling for the bill to be retained. That just means the bill is now halted in its committee and can’t move forward until it comes up again at the next House Judiciary Committee meeting.