4.2 Witnesses and Expert Testimony

Witnesses and expert testimony are essential to the fact-finding process in Florida trials. The Florida Evidence Code governs witness competency, the standards for expert witness admissibility, and the methods by which a witness's credibility may be impeached. Key Florida distinctions exist in each of these areas, particularly concerning hypnotically refreshed testimony, the adoption of the Daubert standard, and specific restrictions on impeachment by prior convictions.

Competency of Witnesses

Under Florida Statute § 90.601, every person is presumed competent to be a witness unless the code provides otherwise. Disqualification of a witness occurs only under specific statutory conditions. A person is disqualified from testifying if the court determines they are incapable of expressing themselves in a manner that can be understood (§ 90.603) or incapable of understanding the duty to tell the truth (§ 90.604).

Hypnotically Refreshed Testimony

A significant Florida-specific rule concerns hypnotically refreshed testimony. In Stokes v. State, 548 So. 2d 188 (Fla. 1989), the Florida Supreme Court held that hypnotically refreshed testimony is per se inadmissible in criminal trials. The court reasoned that hypnosis is not a scientifically reliable method for refreshing memory and carries a high risk of suggestion, confabulation, and cemented memory. However, a witness may testify to facts recalled and recorded prior to the hypnosis session.

Repeal of the Dead Man's Statute

Historically, Florida's "Dead Man's Statute" (§ 90.602) prevented an interested survivor from testifying about oral communications with a deceased person in an action against the decedent's estate. The Florida Legislature repealed this statute in 2005. Consequently, there is no longer a competency bar to such testimony in Florida. Instead, oral statements of a decedent are evaluated under standard hearsay rules, with a specific hearsay exception available for statements made by a deceased or ill declarant under certain conditions (§ 90.804(2)(c)).

Expert Testimony and the Daubert Standard

The standard for admitting expert witness testimony in Florida has undergone a significant evolution. For decades, Florida courts applied the Frye standard, which required that the scientific principles and techniques underlying an expert's testimony be "generally accepted" within the relevant scientific community.

In 2013, the Florida Legislature amended Florida Statute § 90.702 to adopt the federal Daubert standard. After a period of procedural and constitutional conflict, the Florida Supreme Court officially adopted the Daubert standard in 2019, making it applicable to all civil and criminal cases in Florida.

Daubert Requirements (§ 90.702)

Under the Daubert framework, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a qualified expert witness may testify in the form of an opinion if:

1. The testimony is based on sufficient facts or data;
2. The testimony is the product of reliable principles and methods; and
3. The expert has reliably applied the principles and methods to the facts of the case.

The Gatekeeping Role

Under Daubert, the trial judge acts as a "gatekeeper" to ensure that all expert testimony is not only relevant but reliable. In determining reliability, the court may consider several non-exclusive factors:

• Whether the theory or technique can be and has been tested;
• Whether the theory or technique has been subjected to peer review and publication;
• The known or potential rate of error;
• The existence and maintenance of standards controlling the technique's operation; and
• Whether the theory or technique is generally accepted within the relevant scientific community.

Unlike Frye, which applied only to new or novel scientific techniques, Daubert applies to all expert testimony, including technical and specialized non-scientific testimony.

Impeachment of Witnesses

Impeachment is the process of attacking a witness's credibility. Under § 90.608, any party, including the party calling the witness, may impeach a witness.

Reputation for Untruthfulness

Under § 90.609, a witness's credibility may be attacked by evidence that the witness has a bad reputation for truthfulness. Consistent with Florida's character evidence rules, this must be proved by reputation evidence only. Personal opinion testimony regarding a witness's truthfulness is strictly inadmissible.

Prior Inconsistent Statements

A witness can be impeached by showing they made a statement prior to trial that is inconsistent with their trial testimony. Under Florida law:

• Impeachment Only: If the prior statement was not made under oath, it is admissible only to impeach the witness's credibility and cannot be used as substantive evidence to prove the truth of the matter asserted.
• Substantive Use: If the prior statement was made under oath at a trial, hearing, deposition, or other proceeding, it is admissible as substantive evidence under § 90.801(2)(a).

Impeachment by Prior Convictions

Florida Statute § 90.610 governs impeachment by prior convictions and contains several unique, highly tested features:

1. Permissible Convictions: A party may impeach a witness with evidence of a prior conviction if the crime was:
   • A felony (punishable by death or imprisonment in excess of one year), or
   • Any crime (felony or misdemeanor) involving dishonesty or false statement.
2. The "Florida Way" of Questioning: Unlike federal practice, the examiner in Florida is prohibited from asking about the specific name or details of the crime during initial questioning. The proper questions are:
   • "Have you ever been convicted of a felony?"
   • "Have you ever been convicted of a crime involving dishonesty or false statement?"
   • "How many times?"
3. Disclosure of Details: If the witness answers these questions truthfully (e.g., "Yes, twice"), the examiner cannot ask about the name or details of the crimes. The details remain hidden from the jury. The name and details of the convictions are admissible only if the witness is untruthful (e.g., denies the convictions or misstates the number), in which case the examiner may introduce certified copies of the judgments of conviction to prove the convictions.
4. Remote Convictions: Florida does not have a flat 10-year limit for prior convictions like the FRE. Instead, the admissibility of a remote conviction is evaluated under the general § 90.403 balancing test.
5. Juvenile Adjudications: In Florida, evidence of juvenile adjudications is inadmissible to impeach a witness's credibility.