In 2017, The Florida Bar’s Code and Rules of Evidence Committee voted in favor of making the switch from Frye to Daubert, but the state’s high court had declined to make the switch at the time due to constitutional concerns. The Court’s concern over constitutional issues gave way upon review of the overwhelming use of Daubert in all federal courts and in the majority of state courts, without any known holdings that Daubert was violative of any constitutional right. The Court argued that the change would further promote fairness and predictability in the legal system, and help remove incentive for forum shopping.
The prior Frye standard came from the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and held that the admissibility of scientific evidence would turn on whether the technique or opinion in question was generally accepted by other experts in the field. The test was an early attempt at achieving uniformity for the admission of courtroom evidence where scientific principles might be new or complex:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Frye v. United States, 293 F. at 1014 (emphasis added).
Daubert, on the other hand, stems from the case Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and admits testimony based on scientific knowledge when that knowledge is grounded in appropriate validation based on the scientific method and will assist the trier of fact in understanding a fact in issue. The factors for determining whether testimony has sufficient validation and will assist the trier of fact include whether the basis of the testimony has been or can be tested, whether it was subject to peer review, the error rate of studies on the topic, the applicability of the testimony to the facts in question, and, preserving a piece of Frye, whether there is general acceptance within the scientific community.
Read the full opinion– In re Amendments to the Florida Evidence Code, __So.2d__ (Fla. May 23, 2019).