Few people know that in 2013 Florida passed a law changing how divorce expert witnesses could testify in family law cases. Many people warned that the new law may be unconstitutional because of the way it passed, but waited for the Florida Supreme Court to decide. This week it did.

Divorce Expert

The Frye Pan

People rely on all sorts of expert witnesses in divorce and family law cases, maybe more than most areas of law. Routinely, people will come to trial with accountants, psychologists, and other experts in tow.

Since 1923 courts have relied on the Frye Rule, which states that expert opinion based on a scientific technique is only admissible where the technique is generally accepted as reliable in the scientific community.

In 1993, the U.S. Supreme Court adopted a new standard which requires trial judges to screen expert testimony for relevance and reliability. The “Daubert test” developed in three product liabilities cases. The plaintiffs tried to introduce expert testimony to prove products caused their damages. The U.S. Supreme Court ultimately tightened the rules for admitting expert testimony

Too Many Cooks in the Kitchen

In 2013, the Florida Legislature amended the Florida Evidence Code to start following the U.S. Supreme Court’s Daubert standard for the admission of expert testimony and the basis for an expert’s opinion.

I’ve written about the Constitutional problem with the way the legislature created the new law. When the legislature passes a law encroaching on courtroom practice and procedure, the laws are unconstitutional. However, the Legislature can enact substantive laws.

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 Evidence Code contains both substantive and procedural provisions, so there was a suspicion that the Legislature violated the separation of powers doctrine when it amended the code this way. At the time however, that issue has not been accepted by the Florida Supreme Court to date. The latest decision corrected that.

Frying Daubert

This week, the Florida Supreme Court weighed in on the new evidence law and found it unconstitutional. This latest ruling turns back the clock on the Florida Evidence Code.

First, the Supreme Court said that the 2013 amendment was not substantive law because it didn’t create, define, or regulate a right, and solely regulated the action of litigants in court proceedings.

Second, the evidence code amendment conflicted with a rule of this Court, namely, the Frye rule as modified in Florida cases, which the Legislature can’t repeal by simple majority.

Finally, the Florida Supreme Court said it was concerned that the evidence code changes limited access to courts by imposing an additional burden on the courts:

With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.

The Supreme Court opinion is available here.

 

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