695 So.2d 268 (Fla. 1997), 85596, Brim v. State

Docket Nº85596.
Citation695 So.2d 268, 22 Fla. L. Weekly S 338, 22 Fla. L. Weekly S 45
Party NameRobert James BRIM, Petitioner, v. STATE of Florida, Respondent.
Case DateJanuary 16, 1997
CourtUnited States State Supreme Court of Florida

Page 268

695 So.2d 268 (Fla. 1997)

22 Fla. L. Weekly S 338, 22 Fla. L. Weekly S 45

Robert James BRIM, Petitioner,

v.

STATE of Florida, Respondent.

No. 85596.

Supreme Court of Florida.

January 16, 1997

Rehearing Denied June 5, 1997.

Page 269

James Marion Moorman, Public Defender and Jennifer Y. Fogle, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Petitioner.

Robert A. Butterworth, Attorney General; Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Respondent.

REVISED OPINION

OVERTON, Justice.

We have for review Brim v. State, 654 So.2d 184 (Fla.2d DCA 1995). The Second District Court of Appeal certified that its decision conflicts with the First District Court of Appeal's decision in Vargas v. State, 640 So.2d 1139 (Fla. 1st DCA 1994), quashed on other grounds, 667 So.2d 175 (Fla.1995). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. In our decision quashing Vargas, we did not reach the portion of the district court opinion that addressed the admissibility of DNA population frequency statistics. The First District, in its Vargas ruling, decided that DNA population frequency statistics must satisfy the test for new or novel scientific evidence announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). 1 The Second District, in the instant case, ruled that DNA population frequency statistics do not have to satisfy the Frye test and, consequently, we are again asked to define the proper standard with which to determine the admissibility of DNA population frequency statistics. We today clarify and emphasize that the DNA testing process consists of two distinct steps. In Hayes v. State, 660 So.2d 257 (Fla.1995), we took judicial notice that DNA methodology conducted properly would satisfy the Frye test. Id. at 264. This first step of the DNA testing process relies upon principles of molecular biology and chemistry. In oversimplified terms, the results obtained through this first step in the DNA testing process simply indicate that two DNA samples look the same. A second statistical step is needed to give significance to a match.

Page 270

The need for this second step is explained as follows by the National Research Council (NRC) 2 :

The insistence on quantitative estimation has been fueled by the observation in the 1992 report (p 74) that "[t]o say that two patterns match, without providing any scientifically valid estimate (or, at least, an upper bound) of the frequency with which such matches might occur by chance, is meaningless." See, e.g., State v. Carter, 246 Neb. 953, 524 N.W.2d 763, 783 (1994) (quoting 1992 report); Kaye 1995.

Certainly, a judge's or juror's untutored impression of how unusual a DNA profile is could be very wrong. This possibility militates in favor of going beyond a simple statement of a match, to give the trier of fact some expert guidance about its probative value. As noted above, however, there are a variety of procedures--qualitative as well as quantitative--that might accomplish this objective.

....

Except for strong claims of uniqueness, purely qualitative presentations suffer from ambiguity. Professional forecasters, physicians, science writers, students, and soldiers show high variability in translating verbal probability expressions to numerical expressions (Mosteller and Youtz 1990; Wallsten and Budesco 1990). Judges and jurors are likely to show a similar variability in interpreting the meaning of such verbal expressions. To help a court or jury to understand the importance of a match, most experts provide quantitative, rather than qualitative, estimates of the frequency of an incriminating profile in one or more races or an upper bound on the frequency.

Committee on DNA Forensic Science & Commission on DNA Forensic Science, National Academy of Sciences, The Evaluation of Forensic DNA Evidence (Prepublication Copy) at 6-24--6-26 (1996) (footnotes omitted).

This second step of the DNA testing process does not rely upon principles of molecular biology or chemistry. Instead, the calculation of population frequency statistics is based on principles of statistics and population genetics. Accordingly, calculation techniques used in determining and reporting DNA population frequencies must also satisfy the Frye test. It is clear that the DNA testing process consists of two distinct steps and that both steps must satisfy the requirements of Frye. To the extent that the district court decision determines that DNA population frequency statistics need not satisfy a Frye test, it is disapproved.

Facts

The record reflects that Robert James Brim broke into the homes of three different women. Numerous charges were filed, including sexual battery, armed burglary of a dwelling, and robbery. Only two of the three cases are relevant in this review. 3 In one, Brim was convicted by a jury of two counts of sexual battery, one count of robbery, and one count of burglary of a dwelling with assault or battery. Brim's motion to exclude DNA evidence was denied. In the second, Brim pleaded no contest to an armed burglary and sexual battery. There, Brim reserved the right to appeal the trial court's rulings on his motion to exclude DNA evidence.

During the course of Brim's appeal, the state of science has significantly changed. At the time of Brim's district court appeal, the NRC's 1992 report 4 was a strong influence on matters relating to DNA testing. The NRC has recently issued its updated report 5 incorporating recent developments in the science of DNA testing.

On appeal, the Second District confronted the problem that arises when the scientific community is split as to the proper approach

Page 271

for reporting results from the DNA testing process. The district court acknowledged that the NRC, in 1992, had recommended the use of a "modified ceiling principle" in the calculation of DNA population frequency statistics. The district court further noted that the calculation recommended by the NRC was thought to produce more conservative results than the calculation used by law enforcement in this case. In fact, the difference was substantial because "the FBI procedure generated a probability that only one out of 1.4 billion whites and one out of 2.5 million blacks would share the DNA code with the perpetrator of the offense [whereas] [t]he modified ceiling principle indicated that only one of just over 9,000 individuals would share the perpetrator's genetic DNA code." Brim, 654 So.2d at 185. Finally, the Second District reached a dual conclusion. It ruled that there was no need for population frequency statistics to satisfy the Frye test. However, it also ruled, in the alternative, that both of the calculations presented in this case satisfied the Frye test.

The dual conclusion reached by the district court requires us to clarify two distinct issues. First, we reiterate that new or novel scientific evidence presented from both steps of the DNA testing process must satisfy the Frye test. Second, we address whether multiple statistical calculations might simultaneously be able to satisfy the Frye test.

Analysis

DNA evidence is an important scientific tool that can assist in the identification of perpetrators of criminal offenses and, consequently, substantially improve the judicial process in a search for the truth. We have previously taken judicial notice that the first step of the DNA testing process, if properly conducted, will satisfy the Frye test. Hayes, 660 So.2d at 264. It is important to recognize, though, that DNA testing is a two-step process. The fact that a match is found in the first step of the DNA testing process may be "meaningless" without qualitative or quantitative estimates demonstrating the significance of the match. We acknowledge that arguments have been made that the statistics or population genetics used in calculating population frequency estimates are not new or novel scientific evidence and, consequently, should not be subjected to a Frye analysis. We disagree. In 1992, the NRC made the following observation:

Unlike many of the technical aspects of DNA typing that are validated by daily use in hundreds of laboratories, the extraordinary population-frequency estimates sometimes reported for DNA typing do not arise in research or medical applications that would provide useful validation of the frequency of any particular person's DNA profile. Because it is impossible or impractical to draw a large enough population to test calculated frequencies for any particular DNA profile much below 1 in 1,000, there is not a sufficient body of empirical data on which to base a claim that such frequency calculations are reliable or valid per se.

DNA Technology in Forensic Science at 77.

We heed the NRC's warning that we should be cautious when using standard statistical principles in the field of DNA testing. In the absence of an independent validation method, we find that the Frye test is appropriate when using statistics or population genetics to calculate population frequency statistics. Consequently, the techniques and methods utilized in both steps of the DNA testing process must satisfy the Frye test.

We next address the problem that arises when two or more population frequency calculations seemingly satisfy the Frye test. For instance, in this case the district court found that both the "modified ceiling principle" method and the FBI method satisfied the Frye test. We start by emphasizing again that the Frye test is utilized in Florida to guarantee the reliability of new or novel scientific evidence. E.g., Stokes v. State, 548 So.2d 188 (Fla.1989). Despite the federal adoption of a more lenient standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), 6 we have maintained the higher standard

Page 272

of reliability as dictated by Frye. E.g.,...

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118 practice notes
  • 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
    • 9 Febrero 2000
    ...be reliable on some basis other than simply that it is the opinion of the witness who seeks to offer 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 1......
  • 802 So.2d 402 (Fla.App. 3 Dist. 2001), 3D99-2948, Lemour v. State
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • 28 Noviembre 2001
    ...by LabCorp. [ [7] ] The Florida Supreme Court views the NRC reports as authoritative sources on DNA forensic use. See Brim v. State, 695 So.2d 268 (Fla. 1997); Murray, 692 So.2d at 157; Henyard v. State, 689 So.2d 239 (Fla. 1997); Hayes, 660 So.2d at 257. [ [8] ] The Florida Supreme Court h......
  • 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
    • 30 Agosto 2004
    ...principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." Brim v. State, 695 So.2d 268, 272 (Fla.1997). As our supreme court has explained: The underlying theory for this rule is that a courtroom is not a laboratory, and as such......
  • EI DU PONT DE NEMOURS CO. v. CASTILLO, 021799 FLCA3, 962486
    • United States
    • 17 Febrero 1999
    ...be reliable on some basis other than simply that it is the opinion of the witness who seeks to offer 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,......
  • Request a trial to view additional results
106 cases
  • 802 So.2d 402 (Fla.App. 3 Dist. 2001), 3D99-2948, Lemour v. State
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • 28 Noviembre 2001
    ...by LabCorp. [ [7] ] The Florida Supreme Court views the NRC reports as authoritative sources on DNA forensic use. See Brim v. State, 695 So.2d 268 (Fla. 1997); Murray, 692 So.2d at 157; Henyard v. State, 689 So.2d 239 (Fla. 1997); Hayes, 660 So.2d at 257. [ [8] ] The Florida Supreme Court h......
  • 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
    • 30 Agosto 2004
    ...principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." Brim v. State, 695 So.2d 268, 272 (Fla.1997). As our supreme court has explained: The underlying theory for this rule is that a courtroom is not a laboratory, and as such......
  • EI DU PONT DE NEMOURS CO. v. CASTILLO, 021799 FLCA3, 962486
    • United States
    • 17 Febrero 1999
    ...be reliable on some basis other than simply that it is the opinion of the witness who seeks to offer 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,......
  • 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
    • 9 Febrero 2000
    ...be reliable on some basis other than simply that it is the opinion of the witness who seeks to offer 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 1......
  • Request a trial to view additional results
3 firm's commentaries
  • Supreme Court Of Florida Upholds The Frye Standard
    • United States
    • JD Supra United States
    • 14 Noviembre 2018
    ...v. State, 548 So. 2d 188, 195 (Fla. 1989); and Hadden v. State, 690 So. 2d 573 (Fla. 1997). [5] 509 U.S. 579 (1993). [6]Brim v. State, 695 So. 2d 268 (Fla. 1997) (citing Stokes v. State, 548 So. 2d 188 (Fla. [7]Richard Delisle v. Crane Co., et al., No. SC16-2182 at 17 (Oct. 15, 2018). [8]Id......
  • Growing Pains: The Story Behind Florida’s Daubert Arc – Part 1
    • United States
    • JD Supra United States
    • 2 Julio 2019
    ...test for the admissibility of scientific opinions. More thoughtful discussions and reaffirmations were later issued in Brim v. State, 695 So.2d 268 (Fla. 1997), Hadden v. State, 690 So.2d 573 (Fla. 1997) and Castillo v. E.I. DuPont de Nemours & Co., 864 So.2d 1264 (Fla. 2003). In Castil......
  • Supreme Court Of Florida Upholds The Frye Standard
    • United States
    • Mondaq United States
    • 19 Noviembre 2018
    ...Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989); and Hadden v. State, 690 So. 2d 573 (Fla. 1997). 5 509 U.S. 579 (1993). 6Brim v. State, 695 So. 2d 268 (Fla. 1997) (citing Stokes v. State, 548 So. 2d 188 (Fla. 1989)). 7Richard Delisle v. Crane Co., et al., No. SC16-2182 at 17 (Oct. 15, 201......
9 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
    • 1 Marzo 2007
    ...(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 [Daubert], we have maintained the higher standard of r......
  • Navigating expert reliability: are criminal standards of certainty being left on the dock?
    • United States
    • Albany Law Review Vol. 64 Nbr. 1, September 2000
    • 22 Septiembre 2000
    ...significance of a match must satisfy the Delaware standard applicable to the admissibility of scientific evidence."); Brim v. State, 695 So. 2d 268, 275 (Fla. 1997) (remanding the case for an evidentiary hearing on the reliability of DNA testing); Murray v. State, 692 So. 2d 157, 164 (......
  • Adoption of Daubert in the amendment to F.S. [section] 90.702 tightens the rules for admissibility of expert witness testimony.
    • United States
    • Florida Bar Journal Vol. 88 Nbr. 8, September 2014
    • 1 Septiembre 2014
    ...2007). (8) Mahle, The "Pure Opinion" Exception to the Florida Frye Standard, 86 Fla. B. J. 41 (Feb. 2012). (9) Brim v. State, 695 So. 2d 268, 271 (Fla. 1997). (10) Daubert, 509 U.S. at 589. (11) Id. (12) Id. at 595. (13) Id. at 594. (14) See generally Kumho Tire Co. Ltd. v. Carmic......
  • Navigating Florida's Changing Daubert Tide in Business Cases.
    • United States
    • Florida Bar Journal Vol. 93 Nbr. 5, September 2019
    • 1 Septiembre 2019
    ...U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002) (citing Ramirez v. State, 651 So. 2d 1164, 1166-67 (Fla. 1995)). (17) Brim, 695 So. 2d at 272. (18) Ramirez, 651 So. 2d at 1168. See also Frye, 293 F. at 1014 ("...while courts will go a long way in admitting expert testimony ......
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