Filed under: Daily Business Review

Florida May Be Reverting to Frye Standard for Admissibility of Expert Testimony

Originally published in Daily  Business Review, an ALM Media publication, March 2, 2o17.

*Part of the ALM family of award-winning legal products and publications.*

By:  April M. Dahl

The Florida Supreme Court issued a highly anticipated decision on Feb. 16 regarding the admissibility of expert testimony in Florida.

After less than four years as a presumptive Daubert state, Florida may be reverting to the Frye standard to govern the admissibility of expert testimony, a standard which many find to be archaic and out of touch with its federal counterpart. Although the decision was not unexpected, its impact will be significant for trial attorneys statewide due in large part to the unresolved questions left in its wake.

The Court of Appeals of the District of Columbia gave birth to Frye v. United States in 1923. Florida subsequently adopted the test espoused by the Frye court, which requires a two-prong inquiry for the admissibility of scientific evidence: whether the scientific theory or discovery from which the expert derived his/her opinion is reliable, and whether the opinion is accepted in the scientific field. The Frye standard reigned supreme nationwide for almost 70 years.

In 1993, the U.S. Supreme Court adopted a new, more stringent standard governing the admissibility of expert testimony with Daubert v. Merrell Dow Pharmaceuticals. In Daubert, the court held that the Federal Rules of Evidence, and not Frye, provided the standard for admitting expert testimony at trial. Under Daubert, the trial court is tasked with evaluating the credentials of the proffered expert witness and serving as a gatekeeper to ensure that the testimony is based upon reliable foundation. The court noted that under the Federal Rules of Evidence, the trial judge must make a preliminary determination of whether the underlying methodology is scientifically valid. The Daubert court identified non-exclusive factors that a court may consider: whether the methodology has been or is amenable to testing, whether it has been subjected to peer review and/or publication, the known and potential error rate of the methodology and whether it has been generally accepted in the relevant scientific community.

 

Many states adopted the Daubert analysis shortly thereafter. Florida appeared to be one of the minority holdouts until July 1, 2013, when the Florida Legislature in House Bill 7015 amended Florida Statutes Sections 90.702 and 90.704 to replace the standard for expert testimony from the test set out in Frye to the test set forth by the U.S. Supreme Court of the in Daubert. These amendments to the Florida statutes mirror their counterparts contained in the Federal Rules of Evidence regarding the admissibility of expert testimony almost verbatim.

Case Vs. Rule

In its recent decision, the Florida Supreme Court declined to adopt certain legislative changes to the Florida Evidence Code, but only to the extent that the proposed changes were ‘procedural,’ the most significant of which were the newly enacted 90.702 and 90.704. In doing so, the court noted that it has been its policy to adopt procedural provisions of the Florida Evidence Code as enacted by the Florida Legislature. This departure underscores the significance and impact of the court’s decision.

In reaching its decision, the court cited “grave constitutional concerns” raised by the Florida Bar’s code and rules of evidence committee. In particular, the court found that the Daubert amendment may undermine a litigant’s right to a jury trial and deny access to the courts. Although the court raised these issues, it did not address the constitutionality of the statutes at this time. Rather, the court relied upon these “grave constitutional concerns” as the impetus for departing from its policy of adopting procedural provisions of the Florida Evidence Code.

The manner in which court attempted to resolve the present Frye vs. Daubert debate has not in fact definitively resolved the issue. Importantly, the Florida Supreme Court declined to address the remaining question — whether the Legislature’s attempt to transition Florida from Frye to Daubert was a substantive rather than a procedural change. The court left that question open for a “proper case or controversy.”

If the Daubert amendment is found to be procedural in a “proper case or controversy,” then Florida will revert to the arguably outdated Frye standard. On the other hand, if the Legislature’s amendment is subsequently held to be substantive, Florida may now be a Daubert state after all.

Until such a ruling, however, members of the state bar are left searching for the next case to provide direction regarding the appropriate standard governing the admissibility of expert testimony.

 

April M. Dahl is a partner in the Fort Lauderdale office of the national law firm of Hinshaw & Culbertson. She focuses her practice primarily in tort litigation, including products liability, toxic tort, indoor air quality, chemical exposure, construction defect, premises liability, automobile and general liability matters. Contact her at adahl@hinshawlaw.com.

Original Source: http://www.dailybusinessreview.com/id=1202780342439?back=law

 

Leave a Comment March 3, 2017

How Murky Video, Dead Lawyer Won a New Murder Trial

By: Noreen Marcus, Daily Business Review

Now that police dashboard cameras and smart phones are everywhere, it seems incredible that a grainy, silent video can still sway a 1994 murder case.

But it can. Casmir “Casey” Sucharski, one of three homicide victims, had installed a surveillance camera at his Miramar home. The camera captured two men killing Sucharski along with Marie Rogers and Sharon Anderson, friends he knew from his tavern Casey’s Nickelodeon.

With little else connecting defendants Pablo Ibar and Seth Penalver to the gory home invasion on June 26, 1994, the videotape became the state’s Exhibit A.

The case spawned a marathon of five trials. In 2012 a jury acquitted Penalver; on Feb. 4 the Florida Supreme Court gave Ibar a new trial. Ibar has spent 22 years behind bars, almost 16 of them on Death Row.

By a 4-3 vote the court decided his trial lawyer, the late Kayo Morgan, so mishandled his defense as to render ineffective assistance of counsel. The majority said Morgan’s worst failing was not using an expert witness to challenge his client’s identification as one of the men in the video.

“Ibar told Morgan that he wanted a ‘forensic thing,’ but, despite Morgan’s understanding of the critical nature of such evidence, Morgan talked Ibar out of it,” the unsigned opinion states.

“Simply put, we cannot and do not have confidence in the outcome of this trial,” it concludes.

Benjamin Waxman, Ibar’s post-conviction lawyer, said the ruling reflects four justices’ “deep concern that Mr. Ibar may be another innocent person.”

“It all comes down to this blurry, grainy, soundless videotape which was never analyzed for the jury,” said Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman in Miami.

At this point “I can’t imagine Mr. Ibar agreeing to a life sentence,” he said.

Inexpert Defense

Fort Lauderdale-based Morgan cared passionately about his clients but was a rogue within the organized bar. After Morgan died of cancer at 63, his mother said he “got in trouble with judges a lot,” the South Florida Sun Sentinel reported Nov. 21, 2014.

“Morgan’s personal life impacted his practice,” the Supreme Court opinion notes. During jury selection in Ibar’s trial Morgan was charged with aggravated battery on the drug-addicted woman who bore his child. “Morgan was in emotional and physical pain, suffering from extreme duress, and ‘was not there’ mentally,” the opinion recounts.

Knowing he had to attack the video ID’s reliability, Morgan brought in Fort Lauderdale lawyer Barbara Brush as his second-chair and penalty-phase counsel. Morgan delegated to Brush the job of getting a facial identification expert to testify for their side.

Somehow that didn’t happen. The Supreme Court blamed Morgan, finding “Brush acted under Morgan’s direction and it was clear that Morgan was ultimately responsible.”

The majority rested on the expert witness gap to find ineffective assistance, but acknowledged eight other problems with Morgan’s Ibar defense. The justices emphasized they didn’t take Morgan at his word when he testified about his “defective” lawyering at a 2009 post-conviction hearing.

“[W]e do not rely on his admission … but rather on his complete failure to pursue the important defense that Ibar was not the perpetrator of the crime through discrediting the videotape and the state’s evidence as to that identification,” the opinion states. The court reversed Broward Circuit Judge Jeffrey Levenson, who had denied Ibar’s motion for post-conviction relief.

The majority even hinted that the court might have ruled for Ibar a decade ago if an expert had forcefully challenged the video. Instead it upheld his conviction on direct appeal in 2006.

“The video was the foundation of the other testimony and much of that was found erroneously introduced,” Waxman said. Since the video survived unscathed, the high court dismissed as harmless error the jury’s misplaced reliance on video-related evidence that fingered Ibar.

Beyond the Video

To Justice Peggy Quince the case isn’t only about the video and Morgan’s failure to attack it.

She said the jury heard “the proper and compelling trial testimony of Gary Foy,” who saw Sucharski’s vehicle leave the crime scene and made eye contact with the passenger. Foy swore the passenger was Ibar.

The jury saw the video and decided Ibar was one of the killers, even though a T-shirt he allegedly used as a mask didn’t provide a DNA match. Quince clearly trusts the jury system.

“Even if Morgan had secured a different expert, the probability of a different outcome at trial is not substantial,” she wrote in her dissent, joined by Justice Charles Canady. Justice Fred Lewis dissented separately without opinion.

Only the four justices in the majority know whether they were influenced by the acquittal of Ibar’s co-defendant Penalver.

Soon after Ibar’s case arrived at the Supreme Court Waxman tried to interject the acquittal but the prosecution objected and the acquittal discussion disappeared from court filings.

Still the majority took notice. “There are … similarities between Ibar and Penalver’s case,” where the court found Penalver “was denied a fair trial by the prejudicial admission of irrelevant and inadmissible evidence repeatedly elicited by the State over objections,” the opinion says.

The ruling “goes deeper,” Waxman asserted.

Ibar’s conviction survived direct and post-conviction appeals. “It wasn’t until the fourth round of review that the court determined there was error of such magnitude that the conviction could not stand,” he said. “I don’t know any better proof of why we should abandon the death penalty.”

PABLO IBAR, APPELLANT, V. STATE OF FLORIDA, APPELLEE

Case no.: SC12-522

Date: Feb. 4, 2016

Case type: Death penalty

Court: Florida Supreme Court

Author of opinion: Per curiam

Lawyer for petitioner: Benjamin Samuel Waxman, Robbins, Tunkey, Ross, Amsel, Raben & Waxman, Miami

Lawyers for respondent: Attorney General Pamela Jo Bondi, Tallahassee, and Assistant Attorney General Leslie T. Campbell, West Palm Beach

Panel: Chief Justice Jorge Labarga and Justices Barbara J. Pariente, Ricky Polston and James E.C. Perry; Justice Peggy A. Quince (dissent) with Justice Charles T. Canady, and Justice R. Fred Lewis (dissent)

Originating court: Broward Circuit Court

 

 

Leave a Comment February 24, 2016


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