Third DCA Takes on Daubert & Police Identification of Marijuana

There’s an age old saying: “The wheels of justice turn slow.” It’s been over twenty years since the United States Supreme Court decided Daubert v. Merrll Dow Pharmaceuticals, which held that Federal Rule of Evidence 702 should no longer be limited only to the “general acceptance”(or Frye) standard for assessing the admissibility of scientific expert testimony. Since that time, the federal courts have been dealing with the implications of that holding. In subsequent cases — e.g. General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael — the Supreme Court has further expounded upon this principle.

But the holding of Daubert didn’t necessarily change the way expert testimony was treated in state courts. Each state, Florida included, has its own evidence code. And although the corresponding statute to Federal Rule of Evidence 702 might be written strikingly similarly — e.g. Fla. Stat. § 90.702 — each state was still required to interpret its own evidence code. For the longest time, Florida’s evidence code treated the admissibility of expert testimony much like the federal courts did pre-Daubert: under the “general acceptance”(or Frye) standard. That changed recently when the Florida Legislature amended Section 90.702, Florida Statutes to expressly comport with the holdings of Daubert and its progeny. Now, Florida courts are, arguably, back to square one and have to relitigate settled practices and approaches pertaining to (what was formally generally accepted and approved of) expert testimony.

Issues of expert testimony can arise under a myriad of scenarios, and the purpose of this post is not to delve deep into all aspects of expert testimony; rather, it is to bring to your attention one exciting development.

For the longest time, police officers have been permitted by trial courts to provide expert testimony (through the specialized knowledge, training, or experience portal), in court, the sole purpose of which is to positively identify a substance as marijuana. And it’s pretty easy for them to do. Officers need to do nothing more than say a few magic words (for example, I’ve been trained on how to spot marijuana; I’ve had dozens of street arrests where I’ve found it; and though I’ve never really been confirmed by a lab one way or the other, based on the way it looked, smelled, and was packaged, I know it’s marijuana) and viola, the prosecution had made its case. For decades this approach was routinely approved of by Florida appellate courts, reasoning that such an approach was generally accepted and that marijuana is a uniquely identifiable controlled substance based off its form, color, smell, and packaging.

However, gone are those days. Why? Ever since Florida’s evidence code was recently amended, this age-old practice needs to be reevaluated and put through the rigors of a proper Daubert framework. That has lead to a slew of litigation at the trial court level. The argument hinges upon the idea that Daubert requires more than just looking at whether a practice is generally accepted; while that is a still a factor it is not dispositive, and a trial court, serving as the gatekeeper between the jury and inadmissible expert testimony, should look to many other factors (for example, known error rates of the procedure employed) as well.

Unsurprisingly, trial courts have been reluctant to agree with the defense bar on this issue. The State has been able to hang its hat on outdated and irrelevant caselaw from the Frye days. But now, for the first time, these issues found their way to our intermediate appellate courts. In Miami, the pending appeal is L.L. v. State, 14-2410, and it was recently argued by Assistant Public Defender Jeff DeSousa on October 20, 2015. The Courts decision in L.L. will likely shape the landscape for future cases dealing with the in-court identification of controlled substances–especially marijuana.

Stay tuned for the decision.

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