Few people know that Florida passed a new law about expert witnesses which impacts family law. I published an article giving a little history about the new Florida statute, along with a warning that it may be unconstitutional.

I have also blogged about this problem before. The possible Constitutional problems dealt with the way the law was passed. Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Bar Board of Governors voted to reject the new rule, and keep the old rule announced in Frye. The Board voted 33-9 to reject Daubert, the new rule, accepting the recommendation of the Bar’s Code and Rules of Evidence Committee.

Yesterday the Florida Supreme Court weighed in on the Amendment, and declined to adopt it. While the Court did not address the constitutionality of the statute or proposed rule, it ruled that “the fact that there may be “grave concerns about the constitutionality of the amendment” has been a basis previously for the Court not adopting an amendment to the Evidence Code to the extent it is procedural.”

“Accordingly, having heard oral argument and carefully considered the Committee’s recommendation and the numerous comments both submitted to the Committee and filed with the Court, we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy”

The Supreme Court opinion is available here.