Footnotes

1 The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), eschewed a rule of "general acceptance" in favor of a rule of "scientific soundness" wherein the trial court must assess the scientific validity of the theory in issue based on various criteria including general acceptance. See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding that Daubert is applicable to all expert testimony, even if the testimony is based on an expert's personal experience rather than on scientific knowledge). The Florida Supreme Court rejected the Daubert rule in favor of continued use of Frye. See, e.g., Brim v. State, 695 So.2d 268, 271-72 (Fla.1997) ( "Despite the federal adoption of a more lenient standard in [Daubert], we have maintained the higher standard of reliability as dictated by Frye."); Hadden v. State, 690 So.2d 573, 577 (Fla.1997) ("The question of the appropriate standard of admissibility of novel scientific evidence of any kind following the adoption of the evidence code was resolved by this Court in favor of the Frye test."); Flanagan v. State, 625 So.2d 827, 829 n. 2 (Fla.1993) ("We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test.... However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions.").

2 This is particularly true if the expert has a personal stake in the new theory or is prone to an institutional bias. See generally People v. Young, 425 Mich. 470, 391 N.W.2d 270 (1986); D.H. Kaye, Science in Evidence 85 (1997).

3 The cases cited by Hart do not uphold--or even mention--his theory. See State v. Churchill, 231 Kan. 408, 646 P.2d 1049, 1054 (1982) (containing the bald statement that "[the expert] expressed the opinion that the cuts in the victim's breastbone were made by the [defendant's] knife" where bloodstains matching the victim's blood were found on the knife handle; the decision contains no discussion of the basis or method of identification or the degree of certainty of the match); Potter v. State, 416 So.2d 773 (Ala.Crim.App.1982) (approving admission of tool mark testimony in an ax murder case); Stout v. Commonwealth, 237 Va. 126, 376 S.E.2d 288, 290 (1989) (containing the bald statement that "it was determined [by the State Medical Examiner] that the knife was the weapon used to cut Kooshian's throat"; the decision contains no discussion of the basis or method of identification used by the medical examiner or the degree of certainty of the match).

4 Hart is a criminalist specializing in firearm and tool mark identification with the Miami-Dade Police Department and has been in that field since 1971.
The State presented the live testimony of the following tool mark experts: Monty Lutz, a forensic scientist in firearm and tool mark identification in Milwaukee, Wisconsin, who testified that he has never made a knife mark identification in cartilage but that the principle underlying such a practice is generally accepted in the field; Lonny Harden, a forensic scientist in firearm and tool mark identification, who testified that he has made knife-cartilage identifications in other cases and that based on the evidence prepared by Hart in the present case he agrees that Ramirez's knife was the murder weapon to the exclusion of all others, even if there had been ten million similar knives produced; William Conrad, formerly a forensic scientist in Virginia, who testified that he has tested consecutively manufactured knives and that each left distinct identifying marks and that Hart's theory appears to use procedures accepted in the field; and John Cayton, the chief forensic firearm and tool mark examiner with the Kansas City Crime Laboratory, who testified generally concerning tool mark identification procedures.

5 The defense presented the live testimony of Dale Nute, a forensic science consultant with a doctorate in criminology from Florida State University.

6 See J.I. Galan, Identification of a Knife Wound in Bone, 18 Ass'n Firearm & Toolmark Examiners J. (Oct.1986) (finding a positive match between the suspected knife, i.e., a KA-BAR kitchen knife with a well-worn fourteen-inch blade, and a wound in the victim's rib bone based on gross and fine striae; with photos); Valerie Rao and Robert Hart, Tool Mark Determination in Cartilage of Stabbing Victim, 28 J. Forensic Sci. 794, 798 (1983) (finding a match "within reasonable scientific certainty" between the suspected knife, i.e., a marine survival knife with a cross guard, a serrated blunt edge, a sharp edge, and visible defects on the blade, and a wound in the victim's cartilage based on fine and coarse striae arising from class and individual characteristics and supported by two "cross guard" abrasions in the skin surrounding the wound; with photos); Y.J. Tuira, Tire Stabbing with Consecutively Manufactured Knives, 14 Ass'n of Firearm & Toolmark Examiners J. (Jan.1982) (concluding that two consecutively manufactured Buck knives left different microscopic marks when used to stab an automobile tire; with photos); Donald J. Watson, The Identification of Tool Marks Produced from Consecutively Manufactured Knife Blades in Soft Plastics, 10 Ass'n Firearm & Toolmark Examiners J. (Sept.1978) (concluding that two consecutively manufactured Buck knives left different microscopic marks when used to cut soft plastic; with photos).

7 See Wolfgang Bonte, Tool Marks in Bones and Cartilage, 20 J. Forensic Sci. 315 (1975) (concluding that class and individual characteristics of specially ground knives can be determined from wounds in cartilage; with photos); Kyrill Bosch, On Stabbing and Cutting Wounds from Knives with Serrated Blades, 54 German J. Forensic Med. (1973) (translation in present record) (conducting stab wounds in various mediums with various knives and concluding that several characteristics of the knife can be deduced from the nature of the corresponding wound; with photos); Wolfgang Bonte, Considerations on the Identification of Notch Traces from Stabbing Injuries, 149 Arch-Kriminal 77 (March-April 1972) (translation in present record) (conducting stab wounds in human cartilage with twelve different styles of serrated-blade knives and concluding that each blade left characteristic marks; with photos).

8 See, e.g., Michael J. Saks, Merlin and Solomon: Lessons from the Law's Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069, 1092-93 (1998) ("No other fields are as closely affiliated with a single side of litigation as forensic science is to criminal prosecution."); Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Labs, 4 Va. J. Soc. Pol'y & L. 439 (1997) (promoting the use of independent crime labs to reduce the effect of bias); Andre A. Moenssens, Novel Scientific Evidence in Criminal Cases: Some Words of Caution, 84 Crim. L. & Criminology 1, 6 (1993) (asserting that most crime lab personnel are "technicians," not trained scientists and are prone to pro-police bias and averse to rigorous scientific investigation).

9 The North American articles are brief (i.e., several contain only a page or two of text), are uncritical in approach, and are limited to a single anecdotal study.

10 For instance, Hart testified as follows at the trial below:
A. It is not the practice in our laboratory to present photographs of an identification unless the photographs were instrumental in our arriving at the identification. The reason for this being, we are looking through the microscope, changing the lighting, moving specimens up and down, conducting an examination perhaps for hours that cannot be accounted for on a single photograph or several photographs. Frequently the interpretation of these photographs requires the specific training in what is and what is not significant.

11 Hart and Harden both testified that an error in their technique would not result in a false positive identification, only in the inability to make an identification.

12 The State's experts testified that an identification under this procedure is a subjective judgment that is based entirely on the examiner's experience and training. For instance, at the Frye hearing below, Hart testified as follows:
THE COURT: But it is not--you keep using the word criteria, but from what you are telling me, there isn't a criteria. There is a sense that you have enough training, you look at it and you say this is a match, this is not a match. Is that it?
THE WITNESS: Basically that is correct. There is not a numerical count score....

13 See, e.g., United States v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y.1995); Erica Beecher-Monas, Blinded by Science: How Judges Avoid the Science in Scientific Evidence, 71 Temp. L.Rev. 55, 97 (1998); David L. Faigman et al., Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L.Rev. 1799 (1994); Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Labs, 4 Va. J. Soc. Pol'y & L. 439 (1997); Paul C. Giannelli, Scientific Evidence in Criminal Prosecutions, 137 Mil. L.Rev. 167 (1992); Randolph N. Jonakait, Forensic Science and the Need for Regulation, 4 Harv. J.L. & Tech. 109 (1991); Michael J. Saks, Merlin and Solomon: Lessons from the Law's Formative Encounters with Forensic Identification Science, 49 Hastings L.J. 1069 (1998); Clive A. Stafford Smith & Patrick D. Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil, 27 Colum. Hum. Rts. L.Rev. 227 (1996).