Frye standard endorsed by Board of Governors: Florida Supreme Court will have the final say.

Florida courts should continue to use the Frye standard for evaluating expert witnesses and testimony rather than switching to the Daubert criteria favored by the Florida Legislature, according to the Bar Board of Governors.

The board, at its December 4 meeting in Naples, gave its stamp of approval to the recommendation by the Code and Rules of Evidence Committee that the Supreme Court should not adopt into the state's evidence rules the Legislature's 2013 law amending the evidence code to use the Daubert standard for qualifying expert testimony.

CREC had made its recommendation by a 16-14 vote; the board approved the committee's position by a 33-9 margin. The Legislature's actions would have specifically overruled previous Florida Supreme Court rulings upholding the Frye standard for expert testimony. The board heard extensive presentations on both sides of the issue and asked questions at its October meeting, but reserved debate and a vote for its December meeting.

CREC must file its proposal with the board's recommendation with the court by February 1.

Critics of Frye--including many defense lawyers and business interests--say it is too relaxed and can allow junk science in the courtroom, while critics of Daubert--including prosecutors and plaintiff attorneys --say it can lead to repeated challenges of accepted scientific standards and numerous expensive and time-wasting "mini-trial" type hearings before a case actually goes to trial.

Board member Jack Hickey told the board that most of his practice is in federal courts, which use the Daubert standard and nearly every case has extensive preliminary hearings over expert testimony. State courts, with their tight funding and much higher caseloads, simply won't be able to handle the work, he said.

"Frye is a very strict standard as interpreted by the Florida Supreme Court," Hickey said.

But Carlos Martinez, an ex officio board member and the 11th Circuit public defender, said some criminal defendants have been wrongly convicted under Frye because of faulty expert testimony.

"We have hair analysis, bite mark, and bullet lead which have all been discredited and all came in under Frye," Martinez said. "In that context, we could not challenge any of those things.... Things that get in under Frye are problematic. Once they are generally accepted, even if they are generally accepted junk science, you cannot get it out. You cannot fight it."

Board member Bruce Robinson said he's watched litigation...