Re: SC16-181, In Re: Amendments to the Florida Evidence Code

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1 Filing # E-Filed 03/31/ :11:36 PM Hayden O'Byrne hayden.obyrne@klgates.com RECEIVED, 03/31/ :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, T 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 & 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 which modified & Fla. Stat. to bring those statutes in line with K&L GATES LLP SOUTHEAST FINANCIAL CENTER 200 SOUTH BISCAYNE BOULEVARD SUITE 3900 MIAMI FL T F klgates.com

2 Federal Rule of Evidence 702 which has been used by federal courts in the United States since 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 ); In re Amendment of Florida Evidence Code, 497 So. 2d 239, 240 (Fla. 1986)(Ch ); In re Florida Evidence Code, 675 So. 2d 584 (Fla. 1996)(Ch ; Ch , ; Ch ; Ch ; Ch ; and Ch ). 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 ; Ch ; Ch ; Ch ; Ch ; Ch. 99 2; Ch. 99 8; Ch. 99 8; and Ch , 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 2

3 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 & 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 & 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 & , 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 (emphasis added); See also In re Amendments to the Florida Family Law Rules of Procedure, 905 So. 2d 865, 866 (Fla. 2005). 3

4 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 the authority to prescribe matters of procedure in special statutory proceedings. See Fla. R. Civ. P ; 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 Fla. Stat. See Wesley Const. Co. v. Yarnell, 268 So. 2d 454, 455 (Fla. 4th DCA 1972), Proceedings supplementary under 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 Fla. Stat.; In re Florida Evidence Code, 376 So. 2d 1161 (Fla. 1979). Florida Rule of Civil Procedure 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 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 & 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 4

5 Statutes & 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 & Post-judgment proceedings supplemental to recover fraudulent transfers would require examining forged documents pursuant to the Legislature s 2013 amendments to Florida Statutes & , regardless of the standard used at trial. Adopting the Legislature s 2013 amendments to Florida Statutes & 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 5

6 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 & 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 & 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 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 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 6

7 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 & are adopted, it misunderstands that Daubert, Frye, Federal Rule of Evidence 702 and the Legislature s 2013 amendments to Florida Statutes & 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. 7

8 The same would be true if the Legislature s 2013 amendments to Florida Statutes & were applied instead. The CREC Report does not cite a case holding that the Legislature s 2013 amendments to Florida Statutes & (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 (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 MD, 2015 WL (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. 8

9 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: 9

10 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 Scientific Evidence, 22 Fed. Prac. & Proc. Evid (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 , cited by the CREC, actually encourages the swift adoption of the Legislature s 2013 amendments to Florida Statutes & Federal Practice and Procedure, 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 & , 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 & , 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 &

11 For the foregoing reasons, I respectfully request that the Florida Supreme Court adopt as procedural the Legislature's 2013 amendments to Florida Statutes & Regards, Hayden P. O'Byrne, Esq. K&L Gates, LLP Certificate of Service I certify that on, served a copy of these comments by first class mail and to Peter Anthony Sartes, II, Committee Chair, 601 Cleveland Street, Suite 800, Clearwater, Florida , peter(a~greeklaw.com, and on the Bar Staff Liaison to the Committee, Gregory A. Zhelesnik, 651 E. Jefferson Street, Tallahassee, Florida , gzhelesnik@flabar.org. Ole-- - Hayden P. O'Byrne Florida Bar No