Filing # 39719384 E-Filed 03/31/2016 06:11:36 PM
March 31, 2016
Hayden O'Byrne
hayden.obyrne@klgates.com
T +1 305 539 3381
RECEIVED, 03/31/2016 06:13:39 PM, Clerk, Supreme Court
By Electronic Filing
The Florida Supreme Court
c/o John A. Tomasino
Clerk of Court
Florida Supreme Court
500 South Duval Street
Tallahassee, FL, 32399-1927
Re: SC16-181, In Re: Amendments to the Florida Evidence Code
The Florida Supreme Court has long adopted the statutory rules of evidence
enacted by the Legislature to avoid a constitutional schism between “procedural”
rules and “substantive” rules. Were this schism allowed to develop, the various
rules of court which explicitly yield to Florida statutes or the Florida Evidence
Code would further exacerbate this division. To avoid the endless confusion and
resultant appeals determining when and how various evidentiary standards are
applicable, the Florida Supreme Court should maintain its historical practice and
adopt the Legislature’s 2013 amendments Florida Statutes §§ 90.702 & 90.704 to
the extent they are procedural.
A.
The Florida Legislature has properly adopted the federal evidence
standards as the Florida Evidence Code.
The Florida Constitution contemplates that the Legislature has a role in fashioning
Rules of Evidence, so long as they are not prohibited special laws or general law of
local application. See Art III, § 11(3), Fla. Const. Similarly, the Florida Supreme
Court has long recognized that “rules of evidence are derived from multiple
sources, specifically …. statutes enacted by the legislature.” In re Florida
Evidence Code, 372 So. 2d 1369, 1369 (Fla.) decision clarified, 376 So. 2d 1161
(Fla. 1979). On June 4, 2013, the Governor signed into law Chapter 2013-107
which modified §§ 90.702 & 90.704 Fla. Stat. to bring those statutes in line with
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Federal Rule of Evidence 702 which has been used by federal courts in the United
States since 1975.
B.
The Florida Supreme Court has historically adopted the Florida
Evidence Code to avoid appeals and confusion in the operation of
the Courts.
To avoid multiple appeals and confusion in the operation of the courts caused by
assertions that portions of the Florida Evidence Code are procedural and, therefore,
unconstitutional because they had not been adopted by the Florida Supreme Court
under its rule-making authority, the Court, in 1979, adopted the Florida Evidence
Code, unanimously passed by the Legislature in 1976, to the extent it was
procedural. See id. The Florida Supreme Court explained that this confusion
would result because “[r]ules of evidence may in some instances be substantive
law and, therefore, the sole responsibility of the legislature. In other instances,
evidentiary rules may be procedural and the responsibility of this Court.” Id.
Adopting the rules of evidence as enacted by the Legislature, to the extent they are
procedural, avoided a constitutional quagmire.
Since the passage of the Florida Evidence Code in 1976, the Florida Supreme
Court routinely adopted statutory amendments to the evidence code, “to the extent
that they are procedural” to avoid the appeals and confusion which would result
from having separate “substantive” and “procedural” evidence codes. See In re:
Amendment of the Florida Evidence Code, 404 So. 2d 743, 743 (Fla. 1981) (Ch.
81-93); In re Amendment of Florida Evidence Code, 497 So. 2d 239, 240 (Fla.
1986)(Ch. 85-53); In re Florida Evidence Code, 675 So. 2d 584 (Fla. 1996)(Ch.
80-155; Ch. 94-124, 95-147; Ch. 95-158; Ch. 95-179; Ch. 95-187; and Ch. 95286).
It was not until 2000 that the Florida Supreme Court declined to adopt an
amendment to the Florida Evidence Code. See In re Amendments to the Florida
Evidence Code, 782 So. 2d 339, 342 (Fla. 2000) (adopting Ch. 96–215; Ch. 96–
330; Ch. 96–409; Ch. 98–48; Ch. 98–403; Ch. 99–2; Ch. 99–8; Ch. 99–8; and Ch.
99–225, but declining to adopt chapter 98–2, section 1.). In addition to grave
concerns about the constitutionality of Ch. 98-2, section 1, which would allow trial
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without cross-examination, the Florida Supreme Court, in declining to adopt Ch.
98-2, section 1, specifically noted that it “is not modeled after the Federal Rules of
Evidence,” and “we can find no other jurisdiction with a similarly broad formertestimony exception to the hearsay rule.” Id.
C.
The Legislature’s 2013 amendments to Florida Statutes §§ 90.702
& 90.704 adopting the Federal Rules should be adopted to avoid a
myriad of competing rules.
Failing to adopt the Legislature’s 2013 amendments to Florida Statutes §§ 90.702
& 90.704 will create the “multiple appeals and confusion in the operation of the
courts” that the Florida Supreme Court has tried to avoid since 1979, by adopting
the Florida Evidence Code to the extent that it procedural. In re Florida Evidence
Code, 372 So. 2d 1369, 1369 (Fla.) decision clarified, 376 So. 2d 1161 (Fla. 1979).
1.
The Florida Family Law Rules of Procedure have already
adopted the Florida Evidence Code.
The Legislature’s 2013 amendments to Florida Statutes §§ 90.702 & 90.704, are
already used in Florida Family Courts, indeed, the Florida Family Law Rules
specifically yield to the Florida Evidence Code, where they conflict:
(2) The form, content, procedure, and time for pleading in all special
statutory proceedings shall be as prescribed by the statutes governing
the proceeding unless these rules or the Florida Rules of Civil
Procedure, where applicable, specifically provide to the contrary. All
actions governed by these rules shall also be governed by the
Florida Evidence Code, which shall govern in cases where a
conflict with these rules may occur.
Fla. Fam. L. R. P. 12.010 (emphasis added); See also In re Amendments to the
Florida Family Law Rules of Procedure, 905 So. 2d 865, 866 (Fla. 2005).
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2.
Matters of procedure have been delegated to the Legislature
in special statutory proceedings.
The Florida Supreme Court has delegated to the Legislature - pursuant to Fla. R.
Civ. P. 1.010 - the authority to prescribe matters of procedure in “special statutory
proceedings.” See Fla. R. Civ. P. 1.010; In re Commitment of Cartwright, 870 So.
2d 152, 162 (Fla. 2d DCA 2004). Florida Courts of Appeal have recognized a
myriad of “special statutory proceedings” such as:
• The discharge of a perfected mechanics lien under § 713.21 Fla. Stat. See
Wesley Const. Co. v. Yarnell, 268 So. 2d 454, 455 (Fla. 4th DCA 1972),
• Proceedings supplementary under § 56.29 Fla. Stat. See Sanchez v. Renda
Broad. Corp., 127 So. 3d 627, 628 (Fla. 5th DCA 2013),
• Garnishment under Chapter 77. See Garel and Jacobs, P.A. v. Wick, 683
So.2d 184, 186 (Fla. 3d DCA 1996),
• Civil commitment proceedings under the Jimmy Ryce Act. See Masters v.
State, 958 So. 2d 973, 976 (Fla. 5th DCA 2007).
The statutory Florida Evidence Code makes clear that it governs and displaces the
prior general law of evidence used by civil and criminal courts in the State of
Florida, unless otherwise provided by statute. See §90.103 Fla. Stat.; In re Florida
Evidence Code, 376 So. 2d 1161 (Fla. 1979). Florida Rule of Civil Procedure
1.010 recognizes that: the “form, content, procedure, and time for pleading in all
special statutory proceedings shall be as prescribed by the statutes governing the
proceeding.” Fla. R. Civ. P. 1.010.
Given the deference to the Legislature in the Florida Family Law Rules and the
Florida Rules of Civil Procedure, failing to adopt the Legislature’s 2013
amendments to Florida Statutes §§ 90.702 & 90.704 as procedural will result in
endless duplication and confusion in related litigation. Consider a defendant who
forges his spouse’s signature to commit mortgage fraud: The criminal prosecution
would examine the forged documents under Frye. A divorce court would examine
those same documents under the Legislature’s 2013 amendments to Florida
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Statutes §§ 90.702 & 90.704. If the spouse wishes to defend a bank’s foreclosure
based on the forged documents, it is unclear what standard would apply since
Chapter 702, adopted by the Legislature in 2013 to govern foreclosure actions may
be a special statutory procedure. If common law claims are brought by the bank in
the foreclosure action (i.e. fraud) the foreclosure court might have to examine the
same forged documents, in the same action, under both Frye and the Legislature’s
2013 amendments to Florida Statutes §§ 90.702 & 90.704. Post-judgment
proceedings supplemental to recover fraudulent transfers would require examining
forged documents pursuant to the Legislature’s 2013 amendments to Florida
Statutes §§ 90.702 & 90.704, regardless of the standard used at trial. Adopting the
Legislature’s 2013 amendments to Florida Statutes §§ 90.702 & 90.704 would
considerably streamline this litigation and avoid contradictory results.
3.
Failing to adopt the 2013 amendments, creates the
“substantive” v. “procedural” quagmire the Florida
Supreme Court has long sought to avoid.
The “substantive” v. “procedural” separation of powers schism, which so
concerned the Florida Supreme Court in 1979, if suffered now, will still result in
endless appeals and confusion needlessly separating unconstitutional legislative
“procedural” rules form “substantive” ones. The parameters of the Florida
Supreme Court’s authority under article V, section 2(a), and the concomitant
limitations on the authority of the Legislature have not been precisely defined. See
In re Commitment of Cartwright, 870 So. 2d 152, 157 (Fla. 2d DCA 2004).
Moreover, a measure which is substantive for one purpose, may be procedural for
another. See id. at 161. For example, Cartwright explains that a statute may be
deemed procedural for purposes of Ex-Post-Facto-Clause analysis, while the same
statute is deemed substantive for purposes of analysis under article V, section 2(a).
See id. (citing State v. Maxwell, 647 So.2d 871, 872 (Fla. 4th DCA 1995,
approved, 657 So. 2d 1157 (Fla. 1995)). The Florida Supreme Court has found the
prohibition on mentioning insurance coverage at trial, “procedural, just as it is
substantive.” Sch. Bd. of Broward Cty. v. Price, 362 So. 2d 1337, 1339 (Fla.
1978). Finally, the fact that a statutory provision could appropriately be labeled
“procedural” does not necessarily mean that it violates the constitutional separation
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of powers. See Smith v. Dep’t of Ins., 507 So. 2d 1080, 1092 (Fla. 1987). Justice
Adkins once described the entire area of substance and procedure a “twilight
zone.” In re Fla. Rules of Crim. P., 272 So.2d 65, 66 (Fla.1972) (Adkins, J.,
concurring).
Since 1979, the Florida Supreme Court has avoided this
constitutional “twilight zone,” by adopting the Florida Evidence Code to the extent
it is procedural. It should do so again now, especially since there is no particularly
good reason to remain adrift from the standards used by Federal Courts, and
certain Florida State Courts.
D.
The Code and Rules of Evidence Committee of the Florida Bar
has not articulated a single principled reason why Frye is superior
to the Legislature’s 2013 amendments to Florida Statutes §§
90.702 & 90.704.
The Code and Rules of Evidence Committee of the Florida Bar (the “CREC”)
issued a report dated February 1, 2016 (the “CREC Report”) summarizing its
position as to why the Florida Supreme Court should reject the Legislature’s 2013
amendments to Florida Statutes §§ 90.702 & 90.704 to the extent they are
procedural. However, the CREC Report fails to address the Florida Supreme
Court’s historical concerns about the multiple appeals and confusion in the
operation of the courts that would exist if there were a constitutional schism in the
Florida evidence standards.
Instead, the CREC Report offers four (4)
underwhelming arguments as to why the Florida Supreme Court should plunge
Florida’s courts into Justice Adkin’s “twilight zone.”
1.
Stare Decisis does not apply to changes in statutes or rules.
Stare Decisis does not preclude the adoption, by rule, of a statute. As an example,
while wearing its rulemaking hat, the Florida Supreme Court amended Rule 2.070
of the Rules of Judicial Administration, on its own motion, to make the recordings
of grand jury testimony consistent across the state. See Amendment to Florida
Rule of Judicial Admin. 2.070 Court Reporting, 661 So. 2d 806, 806 (Fla. 1995).
In dissent, Justice Harding argued that “this rule change was not prompted by a
change in circumstances….” Id. at 807. However, Justice Harding specifically
recognized that stare decisis does not attach to rule changes. See id. The United
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States Supreme Court has also recognized that stare decisis, does not compel the
“ossification” of regulations, such that an agency may not change them. See Nat’l
Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983
(2005). Moreover, even if stare decisis applied, the “doctrine is said to bend where
there has been a significant change in circumstances since the adoption of the legal
rule.” Robertson v. State, 143 So. 3d 907, 910 (Fla. 2014). The Florida Supreme
Court has long recognized that intervening legislation may significantly change the
circumstances and supplant a prior decision of the Court. See e.g. Rotemi Realty,
Inc. v. Act Realty Co., 911 So. 2d 1181, 1186 (Fla. 2005) (recognizing that
contracts the court once deemed legal are now illegal due to intervening
legislation). Indeed, the Florida Supreme Court has recognized that Congress
should change the law if it does not like United States Supreme Court decisions.
See Butterworth v. Nat’l League of Prof’l Baseball Clubs, 644 So. 2d 1021, 1022
(Fla. 1994)(discussing baseball’s anti-trust exemption).
2.
The Code and Rules of Evidence Committee misreads this
Court’s precedent to create a constitutional objection.
The Florida Supreme Court has never held that a litigant’s constitutional right to
trial by jury would be diminished if a court excludes improper evidence. Indeed,
the Florida Supreme Court has ruled repeatedly that it is proper to exclude
testimony which “has not been proven sufficiently reliable by experts in the field to
justify its validity as competent evidence.” Bundy v. State, 471 So. 2d 9, 18 (Fla.
1985); See also Stokes v. State, 548 So. 2d 188, 196 (Fla. 1989). Similarly, the
Florida Supreme Court has had no problem excluding trial witnesses for procedural
reasons. See Binger v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981).
While the CREC Report laments that “litigants’ constitutional right to trial by jury
would be diminished,” if the Legislature’s 2013 amendments to Florida Statutes §§
90.702 & 90.704 are adopted, it misunderstands that Daubert, Frye, Federal Rule
of Evidence 702 and the Legislature’s 2013 amendments to Florida Statutes §§
90.702 & 90.704 all do the same thing: test the methods an expert uses to reach his
conclusions. Ted Bundy’s right to a jury trial was not infringed because hypnotic
statements against him were deemed inadmissible. Cf. Bundy, 471 So. 2d at 18.
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The same would be true if the Legislature’s 2013 amendments to Florida Statutes
§§ 90.702 & 90.704 were applied instead.
The CREC Report does not cite a case holding that the Legislature’s 2013
amendments to Florida Statutes §§ 90.702 & 90.704 (or any other standard for that
matter) create a jury trial issue. Marsh v. Valyou, the case cited in the CREC
Report, distinguishes between an expert’s “conclusions” and the “methods used to
reach those conclusions,” and recognizes only the former is a proper issue for a
trier of fact. 977 So. 2d 543, 549 (Fla. 2007). This same dichotomy is used by
federal courts applying Daubert. As the Eleventh Circuit recently explained,
“While the [Daubert] inquiry is ‘a flexible one,’ the focus ‘must be solely on
principles and methodology, not on the conclusions that they generate.’” Chapman
v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir. 2014) cert.
denied, 135 S. Ct. 2312 (2015) (emphasis original). The CREC bemoans that
recently Florida Courts have not considered its jury trial theory. However, the
CREC Report does not address the federal cases rejecting its theory. See e.g. Junk
v. Terminix International, 628 F.3d 439, 450 (8th Cir. 2010).
3.
A more rigorous expert witness standard would save
judicial resources.
The CREC Report disparages courts’ thorough examination of evidentiary issues
as a waste of time, completely ignoring the courts’ purpose: streamlining or
eliminating issues for trial. A finding that evidence is unreliable may save
hundreds of days of trial. As but one example, Judge Altonaga’s comprehensive
January 28, 2015 ruling as to the admissibility of denture cream expert testimony
led to the dismissal of dozens of complex product liability lawsuits which would
have taken years, if not decades, to try. Cf. In re Denture Cream Products Liab.
Litig., No. 09-2051-MD, 2015 WL 392021 (S.D. Fla. Jan. 28, 2015). In cases that
go to trial, spending a few hours examining questionable evidence before a jury is
sworn, may avoid a mistrial, prejudice to the parties, or wasted trial days hearing
irrelevant, unreliable evidence. This judicial thoroughness is to be commended,
not disparaged.
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Additionally, the CREC Report discounts the value of having one uniform
standard, both within the state of Florida and beyond. The CREC Report ignores
the time which would be wasted in related litigation in Florida - such as the
mortgage fraud example above - where different standards would have to be
applied to the same evidence. The CREC Report also ignores the fact that
adopting the federal standard would allow overburdened Florida judges to more
easily adopt or examine precedent from around the country. Often in the mass tort
context, all similar federal cases are transferred to a single federal judge who is
tasked with all pre-trial matters including thoroughly examining evidentiary issues.
Adopting the federal standard, would allow overworked Florida judges to use the
work already completed by their federal peers. Concurrently, it would more easily
allow federal judges to adopt the rulings of Florida judges regarding Florida issues.
C.f. In re Chinese Manufactured Drywall Products Liab. Litig., 680 F. Supp. 2d
780, 790 (E.D. La. 2010)(adopting economic loss rule analysis of Florida judge
after coordinated hearing).
4.
Federal courts have faithfully applied Daubert and its
progeny for over 20 years.
The Federal Rules of Evidence, as applied in Daubert and its progeny have been
used for over 20 years in the federal courts. Yet, the CREC Report does not
identify a single actual instance of those rules being “unworkable.” Indeed, doing
so is unlikely as federal courts have recognized that “where applying the Daubert
factors does not appear workable, [a] Court is guided by Kumho’s forewarning that
in certain cases, the ‘relevant reliability inquiry concerns may focus upon personal
knowledge or experience.’” Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd.,
286 F.R.D. 266, 270 (W.D. Pa. 2012) (quoting Kumho Tire Co. v. Carmichael, 526
U.S. 137, 150 (1999)). Under Kumho, the Daubert factors “neither necessarily nor
exclusively appl[y] to all experts or in every case.” 526 U.S. 137, 141. The
prospective concerns described in Daubert’s dissent, and cited by the CREC, have
simply not manifest.
The CREC also looks to the treatise Federal Practice and Procedure, in support of
the continued application of Frye. However, Federal Practice and Procedure
vilifies Frye, indeed the authors explain:
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From the outset, Frye garnered much criticism from scholars—and
even from some courts. This ambivalence may explain why courts so
readily accepted the flimsy justifications advanced for Frye but leaves
us to puzzle over why some scholars labored to find ways to preserve
Frye despite the attempt by the Advisory Committee to stamp out
‘precedential relevance.’
§ 5168 Scientific Evidence, 22 Fed. Prac. & Proc. Evid. § 5168 (2d ed.). As policy
justifications for Frye, the authors list, among other theories: “typical lawyerly
contempt for ordinary people,” “juror incompetence” and “judicial incompetence.”
Id.
Additionally, Federal Practice and Procedure § 5168.1, cited by the CREC,
actually encourages the swift adoption of the Legislature’s 2013 amendments to
Florida Statutes §§ 90.702 & 90.704. Federal Practice and Procedure, § 5168.1
explains that the “arbitrary results” after the revisions to the federal evidence rules
were because “most federal courts lost their way and continued to apply Frye,”
until the Supreme Court decisively corrected them in Daubert. Id. Decisive
adoption of the Legislature’s 2013 amendments to Florida Statutes §§ 90.702 &
90.704, eliminates the “arbitrary results” described in Federal Practice and
Procedure.
E.
The Florida Supreme Court should continue its tradition of
adopting the Legislature’s amendments to the Florida Evidence
Code.
The Florida Supreme Court has long understood the confusion it would foist upon
Florida courts if it suffered dueling evidence rules. There is no good reason, today,
to enter this “twilight zone” of uncertainty. Indeed, adopting the Legislature’s
2013 amendments to Florida Statutes §§ 90.702 & 90.704, will allow Florida
courts to streamline proceedings and more easily adopt the prior rulings of federal
courts. As such, the Florida Supreme Court should adopt as procedural, the
Legislature’s 2013 amendments to Florida Statutes §§ 90.702 & 90.704.
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For the foregoing reasons, I respectfully request that the Florida Supreme Court
adopt as procedural the Legislature's 2013 amendments to Florida Statutes §§
90.702 & 90.704.
Regards,
Hayden P. O'Byrne, Esq.
K&L Gates, LLP
Certificate of Service
I certify that on March 31, 2016, served a copy of these comments by first class
mail and email to Peter Anthony Sartes, II, Committee Chair, 601 Cleveland
Street, Suite 800, Clearwater, Florida 33755-4169, peter(a~ greeklaw.com , and on
the Bar Staff Liaison to the Committee, Gregory A. Zhelesnik, 651 E. Jefferson
Street, Tallahassee, Florida 32399-2300, gzhelesnik@flabar.org .
Ole--
-
Hayden P. O'Byrne
Florida Bar No. 60024.
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