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T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick Co-Managing Partner: Kelly M. Vogt

Florida’s Supreme Court in October 2018 found unconstitutional the Florida Legislature’s attempt to codify the Daubert standard regarding admissibility of expert testimony. DeLisle v. Crane Co., 2018 Fla. LEXIS 1883 (Fla. 2018). The attempted codification of the Daubert standard, in the view of the Florida Supreme Court in October, violated the separation of powers given its exclusive authority to set court procedures. Further, the high court at that time held that the Frye standard is the better standard, and the one to be used in Florida courts rather than Daubert.

A patrol officer in West Valley City, Utah, starts a body camera recording by pressing a button on his chest in March 2015. The West Valley City Police Department issued 190 Axon Flex body cameras for all its sworn officers to wear.

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Taser International has sold a whole lot of stun guns since its founding in 1993. By the company's estimation, nearly two-thirds of all law enforcement patrol officers in the U.S. carry a Taser.

Even as the company rolls out more features for its cameras and software, it will still sell Tasers, which made up about three-quarters of the company's sales last year.

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After the free trial is up, Axon's Body 2 camera has a one-time cost of $399, while use of the company's Evidence.com platform costs $15 to $89 per month, per officer.

But since 2009, Taser has also been selling body cameras worn by police officers. The company says its cameras are now used by 36 of the 68 major law enforcement agencies across America, including the Los Angeles Police Department, which bought more than 7,500 of the devices.

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Learning Point: In Florida, Daubert is now the prevailing standard for expert witness evidence. Going forward, Florida requires a three-part analysis of expert opinion: was it based upon sufficient facts or data, was it the product of reliable principles and methods, and did the expert reliably apply the principles and methods to the facts of the case.

Axon spokesman Steve Tuttle says law enforcement agencies using body cameras have seen "improved behavior on both sides of the badge," citing decreases in both use of force and complaints from the public.

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T: 561.765.5305 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick Co-Managing Partner: Kelly M. Vogt

Sales of body cameras have boomed since the national uproar over a number of police-involved shootings, including the 2014 shooting of Michael Brown in Ferguson, Mo. A recent Pew study found broad support for police-worn body cameras, with a majority of both police officers (66 percent) and the public (93 percent) in favor of their use.

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But now, just a few months later, and with a new makeup of justices, Florida’s Supreme Court has reversed its October decision unilaterally and without petition, and has held that the Daubert standard is indeed the proper standard in Florida.

So when the company announced this week that it was changing its name to Axon — the name of its line of body cameras — it signaled where the company thinks its future lies: in becoming a device-connected platform for law enforcement data.

Axon says it has the answer: Use its cameras to capture the footage, and then use its service to upload it directly to the cloud, where artificial intelligence technology will analyze the video and audio.

Almost twenty years ago, the U.S. Supreme Court abandoned the standard that had been in use since the 1923 case Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The so-called “Frye” standard for the admissibility of expert evidence required that “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Florida courts over time began applying a “pure opinion” exception to the Frye standard, admitting into evidence the opinions of any expert who ignored scientific method but relied on his or her own experience or training.

"At least 10 were Tasered while handcuffed or shackled," the report found. "Only one was female. Nearly 55 percent of the people who died were minorities."

An investigation by The Washington Post in November 2015 found that about one person a week that year had died in incidents in which they were Tasered by police. More than half of them suffered from mental illness or had illegal drugs in their system when they died, according to the newspaper.

The Daubert standard has found favor in most U.S. courts as encouraging expert opinions based on more reliable methods. Nevertheless, in October 2018, Florida’s Supreme Court rejected Daubert as the standard, in favor of the Frye standard.

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Axon and its body-camera competitor Vievu say their products will save time for law enforcement agencies by, for example, making it easier to review footage. Axon's Evidence.com platform offers automated facial redaction and tools to share evidence with prosecutors; Vievu said it will integrate with an AI platform that offers facial recognition and sentiment analysis.

Along with the name change, Axon announced a free trial program for its body cameras: It will send law enforcement agencies one body camera per sworn officer to use for a year. The company is also offering a year of free data storage on its Evidence.com service.

Since the 1993 case from which it was derived, most U.S. courts have employed the Daubert standard to determine the admissibility of expert evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert Court noted that the Frye standard conflicted with Federal Rule of Evidence 702, and failed to require general acceptance of the theory or technique as a precondition of admissibility. The Daubert Court stressed that the purpose of Federal Rule of Evidence 702 is to ensure expert evidence is both relevant and reliable. The focus of the evidence under Rule 702, and under Daubert, is therefore not the opinion itself, but the principals and methods by which the opinion was formed. Daubert requires a three-part analysis of expert opinion: was it based upon sufficient facts or data, was it the product of reliable principles and methods, and did the expert reliably apply the principles and methods to the facts of the case.

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Officers are increasingly getting used to recording their interactions with the public, and now a key question is what police departments should do with all that footage, as NPR's Martin Kaste has reported.

The use of expert opinions in trials is to assist the trier of fact in the quest for truth in complex subject areas that are not commonly known to laypersons. Court proceedings would quickly become circuses if just any “expert” evidence were permitted for consideration by judge or jury. For this reason, courts employ standards by which evidence may, or may not, be admitted as expert evidence.

But now, Florida’s Supreme Court has receded from its position in DeLisle, and issued a 5-2 opinion adopting the Daubert standard for evidence throughout Florida. In re Amendments to the Fla. Evidence Code, No. SC19-107, 2019 Fla. LEXIS 818 (May 23, 2019). The amendments replace the Frye standard with the Daubert standard for admitting expert testimony to align with Federal Rule of Evidence 702. The Court stated that Daubert provides that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The Court went on to reason that by adopting the Daubert standard, creating consistency between state and federal courts, the amendments “will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”