Daubert Criminal

Litigation in Florida
County Court
J O E L L E P PA R D , O R L A N D O C R I M I N A L D E F E N S E AT T O R N E Y
L E P PA R D L AW
J O E L @ L E P PA R D L AW. C O M

Thank you to the APDs!

Crusaders of the Constitution
Social Workers
Play so many roles!

Learning Goals
Understand Daubert standard
Understand impact of pure opinion testimony
Understand basics of Daubert county court applications

History: Daubert in Florida

Legislature replaced Frye test with Daubert for all cases filed after July 1,
2013
Why now pass legislation during the legislative climate not known for holding
the rights of the accused as paramount?
Rationale: keeping out junk science (more on that later)

 Tremendous Opportunity
Opportunity to Litigate New / Novel Issues of Law
Kumho plainly invite[s] a reexamination even of generally
accepted venerable, technical fields.
United States v. Hines (D. Mass. 1999)
Possibility of Keeping Lots of law enforcement junk science
testimony
Procedural tool for pre-trial litigation
Free depo!

Tremendous for setting precedent setting

Daubert Replaced Frye Test

Fry standard Generally accepted in the relevant community
Judge played minor role

Judges Act as
The Gatekeeper

If scientific, technical, or other

specialized knowledge will assist
the trier of fact in understanding
the evidence or in determining a
fact in issue, a witness qualified
as an expert by knowledge, skill,
experience, training, or education
may testify about it in the form of
an opinion or otherwise, if:
90.702, Fla. Stat.

Daubert Statutory Standard

(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of
the case.
90.702, Fla. Stat.

Daubert test requires judges to ascertain the

following:

(1) TESTING: Whether the theory or technique is capable of

being or has been tested;
(3) ERROR RATE/ STANDARDS:The known or potential rate of
error in using a particular scientific technique and the
standards controlling the technique's operation; and
(2) Whether it has been subjected to peer review and
publication;
(4) Whether the theory or technique is generally accepted in
the particular scientific field.
AND..

10

IMPORTANT FIFTH STANDARD

Daubert articulated a fifth criteria that has been left off many lists:
(5) whether there exist standards of use of the techniques employed by the
expert and whether the expert has followed these standards.
Or the witness has applied the principles and methods reliably to the facts of the
case.

This can be among the most important of the Daubert criteria because it is
not uncommon for an expert (aka law enforcement) to employ a generally
accepted technique, but misuse the technique.
Breath test machine operated by rookie highway trooper
Non-botanist, non- chemist officer identifying cannabis

Burden of Proof
On the proponent of bringing in the evidence (usually the State)

OTHER FACTORS DEVELOPED BY

COURTS
(1) Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. Daubert
v. Merrell Dow Pharmaceuticals, Inc ., 43 F.3d 1311, 1317 (9th Cir. 1995).
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See
General Elec. Co. v. Joiner , 522 U.S. 136, 146 (1997) (noting that in some cases a trial court may conclude that there is simply
too great an analytical gap between the data and the opinion proffered).
(3) Whether the expert has adequately accounted for obvious alternative explanations. See Claar v. Burlington N.R.R
., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff's
condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (possibility of some uneliminated causes presents a
question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert).
(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting.
Sheehan v. Daily Racing Form, Inc ., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael , 119 S.Ct
. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field).
(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert
would give. See Kumho Tire Co. v. Carmichael , 119 S.Ct. 1167, 1175 (1999) (Daubert's general acceptance factor does not help
show that an expert's testimony is reliable where the discipline itself lacks reliability, as for example, do theories grounded in
any so-called generally accepted principles of astrology or necromancy.), Moore v. Ashland Chemical, Inc
., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the
plaintiff's respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol
Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on clinical ecology as unfounded and unreliable).

Procedure
You should file pretrial Daubert Motion in Limine
Although technically not required to file MiL in advance, judge can exclude your Daubert
objection

[f]ederal courts, which have long relied on the Daubert standard, have held that a
trial court has broad discretion in determining how to perform its gatekeeper function
when addressing the admissibility of expert testimony.Id.(citing Club Car, Inc. v. Club
Car (Quebec) Import, Inc., 362 F.3d 775, 780 (11th Cir. 2004))(emphasis added).

Procedure: hearing
Hearing not necessarily required, but will be likely in your situation
Demand a hearing, remember the crucial Daubert prong (whether officer
correctly applied the method in

Procedure: timeliness
The First District gave the example that if the basis for an expert opinion
being scientific was not discovered until a final hearing, then a motion raised
contemporaneously at the final hearing would be considered timely. See id.
Booker v. Sumter Cnty. Sheriff's Office/N. Am. Risk Servs., 166 So. 3d 189,
192-93 (Fla. 1st DCA 2015)
**If you dont find out about a cops testimony until trial, thats a timely
objection!
See Training & Experience below

Daubert Procedure-Dont forget

403(b)
If the Court determines the evidence is RELIABLE - then the trial
judge must then determine if the evidence is RELEVANT to the
determination of a fact issue which if of consequence in the case.
Then the 403(b) balancing test must be applied.

Standard of Review
Abuse of discretion
Judges have wide latitude
First decisions are important for setting precedent

Daubert NOT weak standard

Of the three cases constituting the widely cited Daubert trilogy (Daubert, Joiner, and
Kumho Tire Co.), two are the result of the Supreme Court overturning the Eleventh
Circuit on expert testimony issues. The Eleventh Circuit discussed this in rejecting the
plaintiff's proposal for a soft Daubert standard in Allison v. McGhan Medical Corp
., 184 F.3d 1300, 1312 (11th Cir. 1999):
While Allison argues that the thrust of the Rules and of the Eleventh Circuit has been for liberal
admissibility of evidence, she fails to appreciate ... that this Circuit has been twice overruled on
Daubert decisions in precedent setting Supreme Court decisions in Joiner and Kumho Tire, both
of which imposed stricter admissibility standards than the Eleventh Circuit had deemed
appropriate.

Cite this case in your memos!

-Every brief in federal court (and now state court) suggestions that Daubert is a low
standard
-Look

ROLE OF THE EXPERT

The purpose of expert testimony is to provide the trier of fact useful, relevant
information.
See e.g., Mills v. Redwing Carriers, Inc., 127 So.2d 453, 456 (Fla.2nd DCA 1961)

Expert need not be a member of a learned profession.

Expert have wide range of credentials and testify regarding a tremendous
variety of subjects based on their skills, training, education or experience.

What Can Experts Testify About?

When members of the jury can answer a question for themselves without
having an expert answer it for them, expert testimony on such a question is
not helpful to the trier of fact in determining the issue and should be
excluded

Expert Testimony
When members of the jury can answer a question for themselves without
having an expert answer it for them, expert testimony on such a question is
not helpful to the trier of fact in determining the issue and should be
excluded

Daubert Applies to ALL expert

testimony
Demands high standard:
expert employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field [emphasis added].
Kumho Tire Co., 526 U.S. at 152.

Super Police & Pure Opinion

The pure opinion exception provides that if the expert's opinion relies only on
the expert's personal experience and training
Stephen E. Mahle, The "Pure Opinion" Exception to the Florida Frye Standard,
Fla. B.J., February 2012, at 41

Super Police!

Super Police & Pure Opinion

Based upon my training and experience
Police have unbelievable skills
See for miles in the dark
Smell .1 gram of dried cannabis in pocket
Zero chance of making mistakes

Pure opinion testimony no longer

admissible (unless satisfies Daubert)
which is unlikely

Pure Opinion EXPRESSLY

Disallowed
WHEREAS, by amending s. 90.702, Florida Statutes, the Florida Legislature intends to prohibit in the
courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007)
.
H.B. No. 7015; 1 Fla. Prac., Evidence 702.3 (2015 ed.)

Pure opinion testimony is testimony based only on the personal experience and training of the
expert. See Marsh, 977 So.2d at 549.
Booker v. Sumter Cnty. Sheriff's Office/N. Am. Risk Servs., 166 So. 3d 189, 193 (Fla. 1st DCA 2015)
(emphasis added.)
HAVE THIS CASE HANDY
Categories are extremely important
Dont let judge

Have to educate the judge

Be a Defender of the Constitution

The Dogbert Standard

Everything is On the Table

Under the Daubert standard, the trial court can exclude an experts opinion
even if the expert had used reliable and accepted methodology if the trial
court, as gatekeeper, determined the experts conclusion(s) were
unsupported by the given methodologys data.See General Electric Co. v.
Joiner, 522 U.S. 136 (1997).
This is always how its done should NOT be able to cut it anymore

Admitted Scientific Testimony in criminal

cases under Daubert in other jurisditiinc
DNA testing
Alcoholic breath tests

Been found not admissible

under Daubert
Polygraph tests
Voice spectrography (improper foundation)

Possibilities for Florida Daubert

Criminal Litigation in County
Court

Daubert & Presumptive Field

Tests
Screening Tests preliminary tests
used to reduce the # of possible
identities of an unknown substance
(color tests & microcrystalline tests)

Color TyTypespes of Tets ests

TYPES:
Marquis heroin, morphine, opium derivatives, amphetamines
Dille-Koppanyi-barbiturates
Duquenois-Levine marijuana
Van Urk LSD
Scott test - cocaine

Confirmation a single test that positively specifically

identifies a substance.
Example:
gas chromatography-mass spectrometry (GC-MS) test
Chromatography separates the drug from any diluents
Mass spectrometry then is used to identify the drug
Problem Florida Department of Law Enforcement wont test the cannabis under 20g
But State still wants to prosecute without proper evidence

Color Tests
When mixed with a
certain reagent, a drug
can produce a
characteristic color

Heroin

Screening tests only

YouTube - Spray drug test
kit for Cocaine residue
detection

Meth

Presumptive Field Tests Fail

Daubert!
Crime labs do not test or validate the D-L methods,
has no error rates established
has not subjected them to peer review, and
does not exercise controls or standards with this level of drug testing.
Even worse with law enforcement!

More issues
400 different kinds of compounds give false positive sample results
High error rate in studies (as much as 20%)
Its interpretative/subjective in nature (need a color

9th Circuit County Court Cases

Two issues:
Should Daubert apply to field tests?
If so, do the field tests pass Daubert?

Examples of Arguments Youll

See

2013-MM-65898-A-O, Div 62

State basically argued that Daubert is a broad standard and the test should
be admissible completely missed the point
Weve always done it this way

APPELLATE CASE NO.: 2015-AP-000003-A-OR

OWER COURT CASE NO: 2014-MM-001358-A-W
_________________________________________________

Same situation
State didnt produce officer
Case on appeal right now

Field tests are PRECISELY the

category that should receive the
most scrutiny
And dont forget about application to this case

Look to other jurisdictions

State v. Martinez, 69 A.3d 975, 993 (Conn. App. Ct. 2013) (holding that
Daubert should apply to presumptive field tests.)
State v. Morales, 45 P.3d 406, 412 (N.M. Ct. App. 2002), overruled on different
grounds
by State v. Tollardo, 275 P.3d 110, 121 n.6 (N.M. 2012) (Daubert is necessary
and more than officer testimony is needed when does not have requisite
information about how test works).
Litigation comes with tremendous cost to the State!
Remember Defenders of the Constitution

Problem is
Law enforcement can still testify as to the smell and visual appearance of
cannabis

Visual Identification of Cannabis

Cannabis Normally crushed
Need Microscope to see hairs (cystolithic hair)
lavender, oregano, sage, and other members of the Labiatae (mint) family
and tobacco, contain similar properties and are commonly misidentified as
marijuana
Fails Daubert

Daubert and Plain Smell

Smell of cannabis is outside the normal experience therefore, would have
to be an expert W
Scientific inquiry applies to senses as well
Bait them into discussing training and experience
-Example: layperson can testify as to going fast but not to speed, because
that takes special training and experience
-Dont allow judges to set a different standard for criminal court!

Drug Sniffing Dogs

Never been subjected to Daubert challenge in Florida

HGN DRE examinations during

DUI cases

Eyewitness Identification?
Background
Note: found reliable under Daubert in other jurisdictions

Mental Health / Competency ?

Experts pure opinion testimony might now have to meet the Daubert standard
The Florida Supreme Court first announced that pure opinion testimony is not
subject to Frye in Flanagan v. State, 625 So.2d 827, 828 (Fla. 1993):
[P]ure opinion testimony, such as an expert's opinion that a defendant is
incompetent, does not have to meet Frye, because this type of testimony is based
on the expert's personal experience and training. While cloaked with the credibility
of the expert, this testimony is analyzed by the jury as it analyzes any other
personal opinion or factual testimony by a witness. 6

Stephen E. Mahle, The "Pure Opinion" Exception to the Florida Frye Standard, Fla.
B.J., February 2012, at 41, 42

Medical Records
You might find medical records in your battery / DV battery cases
Opinion testimony must be excluded from business records
have to be excluded if business record exception
Hearsay

Valuation Defenses

Opinion
Fair Market Value
Theft/ Criminal Mischief cases
Theft Under $100 M-2
Theft Over $100 M-1
Theft Over $300 is F-3
Criminal Mischief
less than $200 (M2)
over $200 M1
Over a $1000

Closing
Understand Daubert standard
Understand impact of pure opinion testimony
Understand basics of Daubert county court applications

Contact Me!
Id be glad to help out! Send you research/motions, cross, etc!
Joel Leppard
Leppard Law
407-476-4111
As an experienced Orlando DUI Attorney, Id be glad to answer any questions
that you may have about misdemeanors, felonies or other criminal cases!
Joel@Leppardlaw.com