IT'S TIME TO FRY THE FRYE STANDARD

On February 9, 2012, the Florida Supreme Court ruled in the case of King v. Florida (http://www.floridasupremecourt.org/decisions/2012/sc09-2421.pdf).

In this case, the court ruled on the admissibility of tool mark identification science. the Supreme Court ruled that a Frye hearing is only warranted when "an expert attempts to render an opinion that is based on new or novel scientific techniques", citing  U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002).

In my opinion, the court completely missed the point. Using the courts reason, we could then admit the testimony of phrenology experts, because the use of phrenology is an old science. In some areas of science, scientific techniques and statistical inference out strips old techniques. This is certainly the case with criminal evidence – there is a revolution in criminal science investigations and techniques, spawned, in part, by these dates of CSI and related television shows.

It's time to jettison the old Frye standard in Florida law and replace it with the Daubert standard. Experts, the courts, and the public would all benefit from an increased rigor in expert testimony. For criminal defendants, it's a life-and-death matter.

Florida legislators, at the behest of Governor Scott, have taken up the issue. See HB 391, and SB 822. However, for unknown reasons, the bills have floundered, not even being voted on.

It's time to require experts to adhere to a more scientific basis for their opinions.

SEXUALLY RISKY BEHAVIOR

Recently, I had the opportunity to evaluate a woman that had been previously evaluated by another forensic psychologist. The prior psychologist accused the woman of having poor judgment. The basis for this assessment was a single episode of risky behavior of a sexual nature. The woman had met a man in a public place and allegedly had had sex with him that same day. The psychologist opines that, because the woman did not know this man at all, going off with him and having sex was sufficiently risky to cast doubt on her judgment in other situations.

The problem with such opinions is that they are uninformed by research that may demonstrate the actual frequency with which such behavior occurs. In fact, such behaviors are a relatively frequent occurrence. At the very least, they are not infrequent enough to infer that one episode of such behavior equals poor judgment overall. In a study of college students to authors developed a survey of sexually risky behaviors. In this survey, almost 1/4 of the students had sex with someone they just met.

Thus, the psychologist should not have made a negative opinion about the woman's judgment. Such behavior is relatively common, even among college students.

See:
Turchik and Garske addressed this subject (Turchik, J. A., & Garske, J. P. (2008). Measurement of Sexual Risk Taking Among College Students. Archives of Sexual Behavior, 38(6), 936-948).