625 So.2d 827 (Fla. 1993), 78923, Flanagan v. State

Docket Nº78923.
Citation625 So.2d 827, 18 Fla. L. Weekly S 475
Opinion JudgeAuthor: Grimes
Party NameDennis FLANAGAN, Petitioner, v. STATE of Florida, Respondent.
AttorneyNancy A. Daniels, Public Defender and Kathleen Stover, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner.
Case DateSeptember 09, 1993
CourtUnited States State Supreme Court of Florida

Page 827

625 So.2d 827 (Fla. 1993)

18 Fla. L. Weekly S 475

Dennis FLANAGAN, Petitioner,

v.

STATE of Florida, Respondent.

No. 78923.

Supreme Court of Florida.

September 9, 1993

Rehearing Denied Oct. 25, 1993.

Nancy A. Daniels, Public Defender and Kathleen Stover, Asst. Public Defender, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen. and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for respondent.

GRIMES, Justice.

Dennis Flanagan was convicted of sexually battering his mentally retarded nine year-old daughter, T.F. The First District Court of Appeal, sitting en banc, affirmed the conviction and certified the following questions as being of great public importance:

Page 828

(1) IS EXPERT SCIENTIFIC TESTIMONY WHICH DOES NOT MEET THE TEST OF FRYE V. UNITED STATES, 293 F. 1013 (D.C.CIR.1923) FOR ADMISSIBILITY OF NOVEL SCIENTIFIC EVIDENCE OTHERWISE ADMISSIBLE AS BACKGROUND INFORMATION IN A CRIMINAL TRIAL?

(2) IS PEDOPHILE/CHILD SEX OFFENDER PROFILE EVIDENCE ADMISSIBLE IN A CRIMINAL TRIAL?

Flanagan v. State, 586 So.2d 1085, 1124-25 (Fla. 1st DCA 1991). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

One of the witnesses who testified against Flanagan at trial was Dr. Goslin, a psychologist for the HRS Child Protection Team, who evaluated T.F. twice. After discussing her initial evaluation of T.F., Dr. Goslin described typical problems in interviewing a young child, noting for example that it is common for children who were sexually abused to have trouble pinpointing the time of the abuse and keeping the incidents separate. Goslin then talked about common characteristics of the home environment where child sexual abuse occurs and about the characteristics of abusers. It was this latter testimony which was objected to by Flanagan and which troubled a majority of the judges on the district court of appeal. 1

We begin our analysis of the admissibility of this testimony with the basic principle that novel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Stokes v. State, 548 So.2d 188, 195 (Fla.1989). Under Frye, in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." 293 F. at 1014.

Of course, not all expert testimony must meet this test in order to be admissible. As discussed by Judge Ervin below, 586 So.2d at 1109-11, pure opinion testimony, such as an expert's opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert's personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. Profile testimony, on the other hand, by its nature necessarily relies on some scientific principle or test, which implies an infallibility not found in pure opinion testimony. The jury will naturally assume that the scientific principles underlying the expert's conclusion are valid. Accordingly, this type of testimony must meet the Frye test, designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound. See Stokes, 548 So.2d at 193-94 ("[A] courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use.").

Here, it is virtually uncontested that sex offender profile evidence cannot meet this test. The State does not attempt to prove this evidence meets Frye by citing cases or authority showing this type of profile to be accepted in the scientific community, and the only evidence on this point at trial was Dr. Goslin's testimony that this type of information is generally relied on by people working in the field of child sexual abuse to determine what households are at risk and to aid in treatment. However, even Goslin went on to say that the profile could not be used to prove or disprove that a person was a child abuser. After examining relevant academic literature...

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103 practice notes
  • 630 So.2d 172 (Fla. 1993), 79222, State v. Hickson
    • United States
    • Florida United States State Supreme Court of Florida
    • October 21, 1993
    ...of expert testimony from Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which we recently relied on in Flanagan v. State, 625 So.2d 827 (Fla.1993). See Rick Brown, Note, Limitations on Expert Testimony on the Battered Woman Syndrome in Homicide Cases: The Return of the Ultimate Issue Ru......
  • 767 So.2d 637 (Fla.App. 5 Dist. 2000), 5D99-785, Westerheide v State
    • United States
    • Florida Court of Appeal of Florida (US) Fifth District
    • September 29, 2000
    ...the Frye analysis does not apply to this type of expert testimony. See Hadden v. State, 690 So.2d 573 (Fla. 1997); Flanagan v. State, 625 So.2d 827 (Fla. 1993); Florida Power & Light Co. v. Tursi, 729 So.2d 995 (Fla. 4th DCA 1999). In Flanagan, the court held that while novel scientific......
  • 748 So.2d 1108 (Fla.App. 3 Dist. 2000), 3D96-2486, E.I. Du Pont De Nemours & Co., Inc. v. Castillo
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • February 9, 2000
    ...the opinion."); Brim v. State, 695 So.2d 268, 271 (Fla. 1997); Hayes v. State, 660 So.2d 257, 262 (Fla. 1995); Flanagan v. State, 625 So.2d 827 (Fla. 1993); Stokes v. State, 548 So.2d 188, 193-94 (Fla. 1989)("The underlying theory for this rule is that a courtroom is not a laborat......
  • 880 So.2d 1234 (Fla.App. 1 Dist. 2004), 1D03-1658, Roeling v. State
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • August 30, 2004
    ...of the "pure opinion testimony" which our supreme court has recognized need not pass the Frye test, citing Flanagan v. State, 625 So.2d 827 (Fla.1993), and Hadden v. State, 690 So.2d 573 (Fla.1997). The state also points out that a number of other jurisdictions that have considere......
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91 cases
  • 630 So.2d 172 (Fla. 1993), 79222, State v. Hickson
    • United States
    • Florida United States State Supreme Court of Florida
    • October 21, 1993
    ...of expert testimony from Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which we recently relied on in Flanagan v. State, 625 So.2d 827 (Fla.1993). See Rick Brown, Note, Limitations on Expert Testimony on the Battered Woman Syndrome in Homicide Cases: The Return of the Ultimate Issue Ru......
  • 767 So.2d 637 (Fla.App. 5 Dist. 2000), 5D99-785, Westerheide v State
    • United States
    • Florida Court of Appeal of Florida (US) Fifth District
    • September 29, 2000
    ...the Frye analysis does not apply to this type of expert testimony. See Hadden v. State, 690 So.2d 573 (Fla. 1997); Flanagan v. State, 625 So.2d 827 (Fla. 1993); Florida Power & Light Co. v. Tursi, 729 So.2d 995 (Fla. 4th DCA 1999). In Flanagan, the court held that while novel scientific......
  • 748 So.2d 1108 (Fla.App. 3 Dist. 2000), 3D96-2486, E.I. Du Pont De Nemours & Co., Inc. v. Castillo
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • February 9, 2000
    ...the opinion."); Brim v. State, 695 So.2d 268, 271 (Fla. 1997); Hayes v. State, 660 So.2d 257, 262 (Fla. 1995); Flanagan v. State, 625 So.2d 827 (Fla. 1993); Stokes v. State, 548 So.2d 188, 193-94 (Fla. 1989)("The underlying theory for this rule is that a courtroom is not a laborat......
  • 880 So.2d 1234 (Fla.App. 1 Dist. 2004), 1D03-1658, Roeling v. State
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • August 30, 2004
    ...of the "pure opinion testimony" which our supreme court has recognized need not pass the Frye test, citing Flanagan v. State, 625 So.2d 827 (Fla.1993), and Hadden v. State, 690 So.2d 573 (Fla.1997). The state also points out that a number of other jurisdictions that have considere......
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1 firm's commentaries
  • Growing Pains: The Story Behind Florida’s Daubert Arc – Part 1
    • United States
    • JD Supra United States
    • July 2, 2019
    ...test and imposing a rigorous gatekeeping obligation, the Florida Supreme Court first reacted to the decision in Flanagan v. State, 625 So.2d 827, 829 n.2 (Fla. 1993). The Court’s entire discussion (shorn of citations) was We are mindful that the United States Supreme Court recently construe......
11 books & journal articles
  • Challenging expert witness testimony in Florida products liability cases under Frye.
    • United States
    • Florida Bar Journal Vol. 81 Nbr. 3, March 2007
    • March 1, 2007
    ...(2) Frye, 293 F. at 1014. (3) See 509 U.S. 579 (1993). (4) Hadden v. State, 690 So. 2d 573, 576 n.2 (Fla. 1997). (5) Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993). (6) See Brim v. State, 695 So. 2d 268, 271-71 (Fla. 1997)("Despite the federal adoption of a more lenient standard in......
  • Navigating expert reliability: are criminal standards of certainty being left on the dock?
    • United States
    • Albany Law Review Vol. 64 Nbr. 1, September 2000
    • September 22, 2000
    ...distress in the murder of his wife. Another defense victory that might be said to involve syndrome-like evidence was Flanagan v. State, 625 So. 2d 827, 828-30 (Fla. 1993), which ruled that it was error to admit "sex offender profile evidence" against defendant, but this was likewi......
  • Justice delayed is justice denied: wrongful convictions, eyewitness-expert testimony, and recent developments.
    • United States
    • Suffolk University Law Review Vol. 46 Nbr. 4, September - September 2013
    • September 22, 2013
    ...citing Frye); People v. Leahy, 882 P.2d 321, 331 (Cal. 1994) (holding Frye approach survived Daubert in California); Flanagan v. State, 625 So. 2d 827, 829 n.2 (Fla. 1993) (acknowledging Daubert but stating Florida continues to adhere to Frye test). (23.) See Daubert, 509 U.S. at 591-95. (2......
  • "A dangerous bend in an ancient road": the use of similar fact evidence for corroboration.
    • United States
    • Florida Bar Journal Vol. 74 Nbr. 2, February 2000
    • February 1, 2000
    ...v. State, 586 So. 2d 1085 (Fla. 1st D.C.A. 1991) (evidence admissible to prove "motive or intent"), modified on other grounds, 625 So. 2d 827 (Fla. 1993); Potts, 427 So. 2d 822 (evidence admissible to prove "intent, plan, and absence of mistake"); and Espey, 407 So. 2d 3......
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