Ramirez III created new law in Florida for the admissibility of testimonial evidence based on novel theories and techniques. The Florida Supreme Court maintained that the new rule is different and more rigorous than the corresponding federal rule that was derived from the United States Supreme Court opinion in Daubert. While doing so, however, the Florida court evaluated the proffered novel expert testimony using the same factors enunciated in Daubert, substituting a scientific soundness rule for the general acceptance rule in Frye, which had theretofore been the law. Florida judges must henceforth apply the standards of scientific rigor to novel admissibility questions, asking questions analogous to (1) whether a theory or technique is testable and has been tested; (2) whether the results of such testing have been subject to peer review; (3) whether error rates associated with the technique are known and how great the error rate is; and (4) whether the theory or technique is generally accepted in the relevant scientific community.
This new rule for novel theories and techniques gives rise to the issue of whether scientific evidence of a type that has already been received in a substantial number of cases is subject to the same scrutiny. It apparently is if there are doubts as to the current acceptability of the evidence in the relevant scientific community. Perhaps all
such evidence should be subject to the test of scientific soundness. If it were, Florida courts would face the same broad challenges facing federal judges and those in many other Daubert jurisdictions, where the reliability of traditionally accepted techniques, such as fingerprint identification, is being questioned.
Whether Frye or Daubert is more lenient depends on what kinds of evidence are likely to come before the court. If evidence with weak scientific foundations but strong general acceptance, or cases with weak general acceptance but strong scientific foundations, are common, the (scientific) reliability of expert testimony will be correspondingly weak under the Frye test because the former will be inappropriately admitted and the latter inappropriately excluded. The federal (Daubert) rule would exclude the former and admit the latter. Daubert is considered more lenient because it will admit evidence with a strong scientific foundation even if it is not generally accepted. From a scientific perspective, this admissibility is appropriate. For novel evidence, at least, Ramirez III seems to agree.
The implications of Ramirez III for scientific evidence of a type that has already been received in a substantial number of cases is not known. Correll provides precedent for challenging the scientific soundness of expert evidence based on theories with declining general acceptance. There is also a basis in the Florida Evidence Code for applying the scientific soundness principal to all expert testimony because the predicate for admissibility is reliability. Whether Florida courts will eventually do so is as yet unknown. Combining the lessons of Correll and Ramirez III, however, suggests that, when these doubts arise, courts should apply the test of scientific soundness.