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State v. Demeniuk8/27/2004
trial judge, we conclude that if Frye applies to capital cases, the court erred.
III. Applicability of Frye to Capital Cases
The trial court apparently felt that because the case against Ms. Demeniuk has capital implications, the defendant should be permitted to introduce virtually any scientific evidence, no matter how novel, without Frye screening. We reject this conclusion, even though we understand and fully appreciate the difficult and sensitive position of a trial court in dealing with issues of what evidence a defendant might be permitted to introduce in death penalty cases.
We do so because we are unable to find any rule of law that excludes any particular variety of case, including capital cases, from the rigors of Frye testing proposed novel scientific evidence. The United States Supreme Court has pointed out in a somewhat different context:
Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations omitted]. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.
Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The defendant's right to call witnesses in a criminal trial, however, is not absolute. See United States v. Valenzuela-Bernal, 458 U.S. 858 (1982); Roussell v. Jeane, 842 F.2d 1512, 1516 (5th Cir. 1988). The right, for example, is most obviously limited to presenting witnesses who are able to give relevant and material testimony. See Washington v. Texas, 388 U.S. 14 (1967); United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). We conclude that the presentation of opinion testimony based on new or novel scientific principles is also within the limitations justifiably placed on the right to call witnesses when those principles fail Frye analysis.
There are, in fact, a number of capital cases found in our jurisprudence in which the State's novel scientific evidence has been required to be subjected to Frye testing. See, e.g., Armstrong v. State, 862 So. 2d 705 (Fla. 2003); Butler v. State, 842 So. 2d 817 (Fla. 2003); cf., Hudson v. State, 820 So. 2d 1070 (Fla. 5th DCA 2002). We can discern no logical reason why the same regimen should not be required of the defense. The rules of evidence apply to all parties in a court of law.
IV. Conclusion
We conclude that the trial court erred in making a determination that the testimony proposed by Ms. Demeniuk is exempt from Frye testing as pure opinion. Accordingly, we grant the petition, with instructions to conduct a full Frye hearing, at which both the defendant and the State are permitted to present evidence and to cross-examine on all issues associated with the introduction of new and novel scientific evidence.
PETITION FOR WRIT GRANTED.
SAWAYA, C.J., and SHARP, W., J., concur.
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