The States of Daubert after Florida
More than a quarter century after the US Supreme Court adopted the Daubert standard, Florida's Supreme Court has followed suit, becoming the 42nd state to do so, or at least to adopt a substantially similar standard for scientific evidence.
Initially, when the Florida State legislature adopted the Daubert standard in 2013, the state's Supreme Court bridled, using its peculiar right to reject the legislature's view and to continue using the Frye standard. Six years later, after three retiring judges were replaced in January, the Court moved to implement Daubert.
On May 23, 2019, a majority of the Court officially adopted the Daubert standard. In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019), the Court did however observe that it did not decide whether Daubert was constitutional against substantive as-applied challenges (eg: claims that it violates access to courts), although it added that "the 'grave constitutional concerns' raised by those who oppose the [Daubert standard] amendments to the code appear unfounded." In other words, it's unlikely a state constitutional challenge to Daubert would be successful.
The adoption of Daubert did have dissenting opinions. Justice Robert Luck argued that the Court lacked the authority to amend the rules without following the traditional rule amendment process (requiring referral to Florida bar committees, public comment, evaluation, etc.). As well Justice Jorge Labarga argued that the Frye standard was superior for determining an the reliability of testimony given by an expert witness.
Few states are left who agree with Justice Labarga; only five states continue to use the Frye or Frye-plus standard: Illinois, Minnesota, New York, Pennsylvania and Washington.
While states who have adopted Daubert are in the majority, some 16 states have adopted modified versions of Daubert: Alaska, California, Colorado, Connecticut, Hawaii, Idaho, Indiana, Iowa, Maine, Montana, New Mexico, Tennessee, Texas, Utah, and West Virginia.
The State of Daubert in the States:
| State | Standard | Adopted | |
|---|---|---|---|
| Alaska | Daubert / Coon | 2019 — Alaska v. Sharpe, Jan. 4, 2019 | |
| Alabama | Daubert | 2012 — Alabama Supreme Court adopted Ala. Code § 12-21-160 into Rule 702 of the Alabama Rules of Evidence, Jan 1, 2012. | |
| Arkansas | Daubert | 2000 — Adopted in Farm Bureau Mutual Insurance Company v. Foote, 341 Ark. 105 (Apr. 20, 2000) | |
| Arizona | Daubert | 2012 — Arizona Supreme Court amended Arizona Rule of Evidence 702, Jan 1, 2012 | |
| California | Daubert / Kelly | 2012 — The state Supreme Court adopted Daubert in that it applies to opinion testimony, except for testimony on new scientific techniques, which continues to be subject to the Kelly general acceptance test. See: Sargon Enters., Inc. v University of S. Cal. (Nov. 26, 2012, S191550) 2012 Cal Lexis 10713. | |
| Colorado | Shreck / Daubert | 2001 — See People v. Shreck, 22 P.3d 68 (Colo. 2001) | |
| Connecticut | Porter / Daubert | 1997 — See State v. Porter, 241 Conn. 57 (1997) | |
| Delaware | Daubert | 2006 — See: Tolson v. State, 900 A.2d 639, 645 (Del. 2006) | |
| District of Columbia | Daubert | 2016 — The District of Columbia Court of Appeals adopted the standards found in Federal Rule of Evidence 702 in Motorola, Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016). | |
| Georgia | Daubert | 2022 — Daubert was fully adopted by the Georgia General Assembly on March 30, 2022, when it passed HB 478. | |
| Hawaii | Modified Daubert | 1999 — Daubert is not required for the admissibility of expert witnesses, but it is used as part of the analysis of expert witness testimony. See: In re Doe, 981 P.2d 723 (Haw. Ct. App. 1999). | |
| Idaho | Partial Daubert | 2002 — Idaho has only applied Daubert in criminal cases. See: State v. Parkinson, 909 P.2d 647, 652 (Idaho Sup. Ct. 1996), for using Daubert for "guidance", and then broadened usage in State v. Siegel, 137 Idaho 538, 50 P.3d 1033 (Idaho App., 2002) | |
| Illinois | Frye | 2001 — Frye test for admissibility of novel scientific expert evidence, although much evidence law based on stare decisis. One state rule governs expert testimony in medical malpractice cases. Frye standard upheld in Turner v. Williams, 326 Ill.App.3d 541, 260 Ill. Dec. 804 Ill.App. 2 Dist., (Illinois 2001). | |
| Indiana | Modified Daubert | 2005 — Indiana courts routinely apply Daubert, although it is a non-binding guide for examining expert evidence. See Smith v. Yang 829 N.E.2d 624, 626 (Ind.App. 2005). | |
| Iowa | Modified Daubert | 2002 — Daubert applied in civil and criminal cases, and while courts are strongly encouraged to apply Daubert, the are not required to do so. See: In re Detention of Rafferty, 2002 WL 31113930 (Iowa App., 2002) | |
| Kansas | Daubert | 2014 — On July 1, 2014, Kansas adopted the Daubert standard. | |
| Kentucky | Daubert / Harris | 1995 — The Kentucky Supreme Court adopted Daubert although it retained limits on the determination of admissibility of DNA evidence as determined in Harris. See: 908 S.W.2d 100 Mitchell v. Commonwealth (S. Ct. 1995) 1995 Ky. Lexis 94 | |
| Louisiana | Daubert | 1993 —The Louisiana Supreme Court adopted a variant of Daubert in State V. Foret in a criminal cases in 1993 and has generally been applied in civil cases, although its applicability to non-jury trials has been disputed. /td> | |
| Maine | Daubert / Williams | 2005 — Admissibility of expert evidence governed by Williams, see State v. Williams, 388 A.2d 500 (Me.,1978). In August 2005, the state Supreme Court noted that Daubert was not officially adopted, but it was favorably cited. See: Searles v. Fleetwood Homes of Pennsylvania, Inc., 878 A.2d 509 (Me., 2005). | |
| Maryland | Daubert | 2020 — Maryland adopted Daubert in Rochkind v. Stevenson, 236 A.3d 630 (Maryland, 2020) | |
| Massachusetts | Daubert | 1994 — Massachusetts Supreme Judicial Court adopted Daubert in Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994). | |
| Michigan | Daubert | 2004 — Michigan amended its rules Jan. 1, 2004 to adopt Daubert, which was confirmed by the state Supreme Court in Gilbert v. Daimler Chyrsler Corp. Gilbert v. Daimler Chyrsler Corp., 470 Mich. 749, 781 (2004). | |
| Minnesota | Frye/Mack | 1980 — Courts must apply the Frye standard as well as ensure that evidence must have a scientifically reliable foundation. See State v. Mack, 292 N.W.2d 764 (Minn. 1980). | |
| Mississippi | Daubert | 2010 — Mississippi adopted the Daubert standard in May 2003 for the admissibilityof expert testimony. In 2010, the state Supreme Court ruled that trial courts must consider teh five factors of Daubert. See Hill v. Mills, 26 So. 3d 322, 336 (Miss. 2010) | |
| Missouri | Daubert | 2017 — Amendments signed into law Mar. 15, 2017. | |
| Montana | Modified Daubert | 2005 — In State v. Clifford 328 Mont. 300, 121 P.3d 489 (Mont., 2005), the state Supreme Court held that the trial court had “improperly limited Daubert” only to cases involving novel scientific evidence. Montana Rules of Evidence 702 is essentially equivalent to the Federal Rule 702 requiring a witness to be qualified, the evidence to be reliable and the testimony relevant, but Montana's rules are not exactly the same as the federal rules. | |
| Nebraska | Daubert | 2001 — The state Supreme Court adopted Daubert in Schafersman v. Agland Coop., 262 Neb. 215 (Neb. 2001), finding that courts would need to apply Daubert beginning Oc. 1, 2001. | |
| New Hampshire | Daubert | 2002 — The state Supreme Court adopted the Daubert standard in Baker Valley Lumber, Inc. v. Ingersoll-Rand Company, 148 N.H. 609; 813 A.2d 409 (N.H. 2002). | |
| New Jersey | Daubert/Frye | 2018 — Daubert in civil cases; Frye in criminal matters. Although the state Supreme Court has not declared that it has adopted Daubert for all civil cases, it has clarified that Daubert generally applies. On August 1, 2018, in In re Accutane Litigation, 191 A.3d 560 (N.J. 2018), the court found that "We perceive little distinction between Daubert's principles regarding expert testimony and our own … . Accordingly, we now reconcile our standard under N.J.R.E. 702, and relatedly N.J.R.E. 703, with the federal Daubert standard to incorporate its factors for civil cases." As for criminal cases, see State v. J.L.G. (A-50-16) (078718), July 31, 2018. | |
| New Mexico | Daubert / Alberico | 1993 — The state Supreme Court adopted standards based on Daubert in State v. Alberico, 861 P.2d 192, 203 (N.M. 1993). However, in State v. Torres, 976 P.2d 20 (N.M. 1999), the state Supreme Court did not embrace Kumho Tire in the application of Daubert where expert testimony is based solely on experience or training. See also State v. Anderson, 118 N.M. 284, 881 P.2d 29 (1994). | |
| New York | Frye-plus | See: Sean R. v. BMW of North America, 26 N.Y.3d 801 (2016); Cornell v. 360 W. 51st St. Realty, 22 N.Y.3d 762 (2014); Parker v. Mobil Oil, 7 N.Y.3d 434 (2006); and, People v. Wesley, 83 N.Y.2d 417 (1994) | |
| Nevada | Unique | 2010 — Nevada's Rules of Evidence have their own three prong test of admissibility, although it has many similarities to Daubert See: Higgs. v. State, 222 P.3d 648 (Nev. 2010). | |
| North Carolina | Daubert | 1995 — The state Supreme Court cites Daubert for admissibility of expert testimony in State v. Goode, 461 S.E.2d 631, 639 (N.C. 1995). | |
| North Dakota | Unique | 2005 — The state Supreme Court never formally adopted the Frye standard and rejected adopting the Daubert standard in State v. Hernandez, 707 N.W.2d 449 (North Dakota, 2005). North Dakota's Rule 702 is very similar to Fed. R. Evid. 702. | |
| Ohio | Daubert | 2005 — The state Supreme Court has cited Daubert extensively, and it has been applied in civil and criminal cases, but it has not explicitly adopted it. See State v. Wilson, Slip Op., 2005 WL 3112874 (Ohio App. 5 Dist., 2005) | |
| Oklahoma | Daubert | 2005 — The state Supreme Court adopted Daubert in civil cases in Dwain Lee Christian III v. Karl Gray, et al., No. 96, 813 Ok. 10, 65 P.3d 591 (Okla. 2003) and the Oklahoma Court of Criminal Appeals adopted Daubert in criminal cases in Taylor v. State, 889 P.2d 319, 328-29 (Okla. Crim. App. 1995). However, the state Supreme Court limited Daubert inquiries to novel expert testimony or situations in which the expert's method is not established. See Cline v. DaimlerChrysler Co., Corp., 2005 Ok. Civ. App. 31, 114 P.3d 468 (Div. 3, 2005), cert. denied. | |
| Oregon | Daubert / Brown | 1996 — The state Supreme Court adopted the Brown standard in 1984 with the court subsequently found to be consistent with Daubert. The Brown standard has been applied in civil and criminal cases, while Daubert has only specifically been applied in criminal cases. See: State v. Brown, 687 P.2d 751, 759 (Or. 1984) and State v. Lyons, 924 P.2d 802, 804 (Or. 1996). | |
| Pennsylvania | Frye | 2003 — The state Supreme Court confirmed its adherence to the Frye standard in its 2003 decision in Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (Pennsylvania 2003). | |
| Rhode Island | Daubert | 1996 — Case law consistent with Daubert. See: State v. Morel, 676 A.2d 1347, 1355 (R.I. 1996) | |
| South Carolina | Unique (Jones) | 2007 — South Carolina's expert witness testimony standard, Jones, is similar to Daubert and was adopted by the state Supreme Court in State v. Jones, 273 S.C. 723 (1979) and reaffirmed that standard in State v. White, 642 S.E.2d 607 (S.C. Ct. App. 2007). | |
| South Dakota | Daubert | 1994 — The South Dakota Supreme Court adopted Daubert in State v. Hofer, 512 N.W.2d 482, 484 (S.D. 1994) | |
| Tennessee | Daubert / McDaniel | 2009 — The state Supreme Court adopted Daubert standards, although it did not explicitly adopt Daubert, in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). In 2009, the state Supreme Court found that "… whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." See Tennessee v. Marlon Duane Kiser., No. E2005-02406-SC-DDT-DD (Tenn 2009). | |
| Texas | Daubert / Robinson / Kelly | 2005 — The state Supreme Court adopted Daubert through E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), although it also adopted the Kelly standard from Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). In Ablanedo v. Texas, S.W.3d (Tex.App., Austin 2005) the Court of Appeals for Texas noted that the standards set in Daubert, Robinson, and Kelly provided the non-exclusive factors to analyze evidence. | |
| Utah | Daubert / Rimmasch | 2005 — The state Supreme Court set the Rimmasch standard in State v. Rimmasch, 775 P.2d 388 (Utah 1989), which it later saw as forshadowing Daubert. Utah Rules of Evidence are modeled on the Federal Rules of Civil Procedure, but it also applies the Rimmash standard. However, the Rimmasch test only applies to novel scientific methods and techniques. See Daubert in Haupt v. Heaps, 775 P.2d 388, 2005 WL 2586633 (Utah App., 2005). | |
| Vermont | Daubert | 2004 — The state amended its Rules of Evidence to be in accord with the federal Daubert rules on Jul. 1, 2004, applying Daubert in both civil and criminal matters. | |
| Virginia | Spencer | 2015 — In Padula-Wilson v. Wilson, 1203-14-2, the Virginia Court of Appeals reaffirmed its Spencer standard for expert witness testimony, finding that the circuit court erred by evaluating proposed expert evidence “through the lens of Daubert,” instead of the “framework enunciated in Spencer.” The Spencer standard requires a court to make a "threshold finding of fact about the reliability of the scientific method offered" for novel evidence. See: Spencer v. Virginia, 393 S.E.2d 609, 621 (Va. 1990); O'Dell v. Virginia, 364 S.E.2d 491 (Va. 1988). | |
| West Virgina | Daubert / Wilt | 2013 — The state Supreme Court of Appeals adopted a modifed version of Daubert, referred to as the Wilt standard in 1993 [See Wilt v. Buracker, 443, S.E.2d 196, 203 (W. Va. 1993)]. In 2014, the West Virginia Supreme Court of Appeals revised it Rules of Evidence, in some cases not adopting the federal practice under Daubert Specifically, the new rules only require the Court to exercise the "gatekeeper" function where novel scientific testmony is benig presented. | |
| Washington | Frye | 2011 — Reaffirmed in Anderson v. Akzo Nobel Coatings Inc., No. 82264-6, Wash. Sup.; 2011 Wash. LEXIS 669 (Sept. 8, 2011). | |
| Wisconsin | Daubert | 2011 — The Wisconsin Legislature amended Wis. Stat. section 907.02 to adopt the Daubert standards, in both civil and criminal matters, effective Feb. 1, 2011. | |
| Wyoming | Daubert | 2015 — The state Supreme Court adopted the Daubert standard in Bunting v. Jamieson, 984 P.2d 467 (Wyo. 1999). However, in 2015 the Court found that if the expert witness "did not correctly follow the methodology of differential diagnosis, that could affect the weight and persuasiveness of her opinions, but does not render that evidence inadmissible under Daubert." See, e.g., Wise v. Ludlow , 346 P.3d 1, 15 (Wyo. 2015). |
J.L. HillSep 8, ’21
William L. Tafoya, Ph.D.Sep 8, ’21
J.L. HillApr 28, ’20
Jonathan Venn, Ph.D.Apr 27, ’20
What’s on your mind?
Post a Comment
5024
4 Comments