Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). · Go Syfert
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Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). Cases Citing This Book View Copy Cite
“he burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.”
166 citation events (105 in the last 25 years) across 2 distinct courts.
Strongest positive: Hadden v. State (fladistctapp, 1996-02-20)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) Hadden v. State (2×) also: Cited as authority (rule)
Fla. Dist. Ct. App. · 1996 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
he burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.
discussed Cited as authority (rule) JABARI KEMP v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · confidence medium
Moreover, “[i]n utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995).
cited Cited as authority (rule) RICHARD DELGADO-CRUZ v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2018 · confidence medium
Murray v. State, 692 So. 2d 157, 164 (Fla. 1997) (citing Ramirez v. State, 651 So. 2d 1164, 1167 (Fla. 1995)).
discussed Cited as authority (rule) Richard DeLisle v. Crane Co.
Fla. · 2018 · confidence medium
Under Frye, “the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995).
discussed Cited as authority (rule) & SC15-1233 Richard Knight v. State of Florida & Richard Knight v. Julie L. Jones, etc.
Fla. · 2017 · confidence medium
The Frye test places the burden of proof “on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Id. (quoting Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995)).
discussed Cited as authority (rule) Gosciminski v. State (2×) also: Cited "see"
Fla. · 2013 · confidence medium
As we explained in Ramirez v. State, 651 So.2d 1164, 1166-67 (Fla.1995), the admission into evidence of expert opinion testimony concerning a new or novel scientific principle is a four-step process.
cited Cited as authority (rule) Brewington v. State
Fla. Dist. Ct. App. · 2012 · confidence medium
The general acceptance under the Frye test must be established by a preponderance of the evidence.” Brim, 695 So.2d at 272 (quoting Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)).
discussed Cited as authority (rule) Overton v. State (2×) also: Cited "see"
Fla. · 2007 · confidence medium
"In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand." Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995) (emphasis added).
examined Cited as authority (rule) Marsh v. Valyou (3×) also: Cited "see, e.g."
Fla. · 2007 · confidence medium
See Brim, 695 So.2d at 272 ("[W]e have expressly held that the trial judge must treat new or novel scientific evidence as a matter of admissibility (for the judge) rather than a matter of weight (for the jury)."); Ramirez, 651 So.2d at 1168 (recognizing that "[t]he trial judge has the sole responsibility to determine" "the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand").
discussed Cited as authority (rule) Hildwin v. State (2×)
Fla. · 2006 · confidence medium
Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995).
discussed Cited as authority (rule) Hawkins v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2006 · confidence medium
Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject. 651 So.2d at 1166-67 (citations omitted).
cited Cited as authority (rule) Matos v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
Ramirez v. State, 651 So.2d 1164, 1166-67 (Fla.1995) (quoting Frye, 293 F. at 1014 ).
discussed Cited as authority (rule) Philip Morris Inc. v. French
Fla. Dist. Ct. App. · 2004 · confidence medium
This standard requires that an expert's testimony be "based on a scientific principle or discovery that is `sufficiently established to have gained acceptance in the particular field in which it belongs.' " Ramirez v. State, 651 So.2d 1164, 1166-67 (Fla.1995). [6] The defendants did not renew their Frye motion during the course of Dr. Persky's testimony. [7] This statute provides in pertinent part: (3) Apportionment of damages — In an action to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the b…
cited Cited as authority (rule) Roeling v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
Accord Hadden, 690 So.2d at 577-78 ; Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) ( Ramirez II ).
discussed Cited as authority (rule) Bevil v. State (2×)
Fla. Dist. Ct. App. · 2004 · confidence medium
Accord Hadden v. State, 690 So.2d 573, 577-78 (Fla.1997); Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) ( Ramirez II ).
discussed Cited as authority (rule) Dirling v. Sarasota County Government
Fla. Dist. Ct. App. · 2004 · confidence medium
If new or novel scientific principles are at issue, the JCC should perform a Frye analysis following the four-step process set forth in Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995); see also Henson I, 787 So.2d at 14 ; see generally, Ehrhardt, Florida Evidence, § 702.3 at 630-33, and David W.
cited Cited as authority (rule) Collier v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995).
cited Cited as authority (rule) Magaletti v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
Hayes, 660 So.2d at 262 (quoting Ramirez v. State, 651 So.2d 1164, 1166 (Fla.1995)).
discussed Cited as authority (rule) Spann v. State
Fla. · 2003 · confidence medium
"By definition, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques." U.S. Sugar, 823 So.2d at 109 (citing Ramirez v. State, 651 So.2d 1164, 1166-67 (Fla.1995)).
cited Cited as authority (rule) Sybers v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
Accord Hadden v. State, 690 So.2d 573, 577-78 (Fla.1997); Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) ( Ramirez II ).
discussed Cited as authority (rule) Yisrael v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
The general acceptance under the Frye test must be established by a preponderance of the evidence." Brim v. State, 695 So.2d 268, 272 (Fla.1997)(quoting Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)).
discussed Cited as authority (rule) Murray v. State
Fla. · 2002 · confidence medium
Because the State was seeking to introduce the DNA test results, it bore the burden of proving the general acceptance of "both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand." Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995).
examined Cited as authority (rule) State v. Sercey (3×)
Fla. Dist. Ct. App. · 2002 · confidence medium
Id. at 1166-67 (citations omitted).
examined Cited as authority (rule) Arnold v. State (3×) also: Cited "see"
Fla. Dist. Ct. App. · 2002 · confidence medium
"The principle inquiry under the Frye test is whether the scientific theory or discovery from which an expert derives an opinion is reliable." Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995).
discussed Cited as authority (rule) Darling v. State
Fla. · 2002 · confidence medium
The general acceptance under the Frye test must be established by a preponderance of the evidence." 695 So.2d at 272 (alteration in original) (quoting Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)).
examined Cited as authority (rule) Ramirez v. State (3×) also: Cited "see", Cited "see, e.g."
Fla. · 2001 · confidence medium
Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995) ( Ramirez II ).
discussed Cited as authority (rule) David v. National Railroad Passenger Corp.
Fla. Dist. Ct. App. · 2001 · confidence medium
Once a court discerns that expert testimony would assist the jury, a point not contested in this appeal, it must then conduct a Frye hearing to "decide whether the expert's testimony is based on a scientific principle or discovery that is `sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (quoting Frye ).
discussed Cited as authority (rule) Hyundai Motor Co. v. Ferayorni (2×)
Fla. Dist. Ct. App. · 2001 · confidence medium
To be admissible in Florida courts, an expert's opinion relating to matters involving novel scientific evidence must be based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014; Hadden v. State, 690 So.2d 573, 576 (Fla.1997); Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995).
cited Cited as authority (rule) Rodriguez Ex Rel. Rodriguez v. Feinstein
Fla. Dist. Ct. App. · 2001 · confidence medium
See Murray v. State, 692 So.2d 157, 161 (Fla.1997); Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995).
discussed Cited as authority (rule) US Sugar Corp. v. Henson (2×)
Fla. Dist. Ct. App. · 2001 · confidence medium
In Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995), the court set forth a four-step process for applying Frye : First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue....
discussed Cited as authority (rule) Zane v. Coastal Unilube, Inc.
Fla. Dist. Ct. App. · 2000 · confidence medium
See Flanagan v. State 625 So.2d 827, 828 (Fla.1993) (novel scientific evidence is not admissible in Florida unless it meets the Frye test); Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (under Frye expert's testimony must be based on scientific principle or discovery sufficiently established to have gained general acceptance in particular field); Hayes v. State, 660 So.2d 257, 262 (Fla.1995) (Florida follows Frye test to determine the admissibility of new or novel scientific evidence).
discussed Cited as authority (rule) EI Dupont De Nemours v. Castillo Ex Rel. Castillo
Fla. Dist. Ct. App. · 2000 · confidence medium
Murray v. State, 692 So.2d 157, 161 (Fla.1997)(quoting Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)); see also Hadden v. State, 690 So.2d 573, 578 (Fla.1997) ("[I]t is the function of the court to not permit cases to be resolved on the basis of evidence for which a predicate of reliability has not been established.
cited Cited as authority (rule) Williams v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Id. at 1167 (citations omitted).
discussed Cited as authority (rule) Timot v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Unlike the present case, in Miles the court found that issue was preserved for appellate review by appropriate and timely objection. [3] The state urges that the proper procedure would be for the defense to move pretrial for exclusion of DNA evidence as approved in Ramirez v. State, 651 So.2d 1164 n. 4 (Fla. 1995).
discussed Cited as authority (rule) Williams v. State (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 1998 · confidence medium
Id. at 1167 (citations and internal quotation marks omitted).
cited Cited as authority (rule) Berry v. CSX Transp., Inc.
Fla. Dist. Ct. App. · 1998 · confidence medium
Id. at 1168.
discussed Cited as authority (rule) Centex-Rooney Const. Co., Inc. v. Martin County
Fla. Dist. Ct. App. · 1997 · confidence medium
The purpose of a Frye hearing is to determine "whether the expert's testimony is based on a scientific principle or discovery that is `sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995)(quoting Frye, 293 F. at 1014).
discussed Cited as authority (rule) Murray v. State (2×) also: Cited "see"
Fla. · 1997 · confidence medium
Ramirez v. State, 651 So.2d 1164, 1168 (Fla. 1995) (emphasis added).
cited Cited as authority (rule) Brim v. State
Fla. · 1997 · confidence medium
Id. at 1168 (emphasis added).
discussed Cited as authority (rule) Brim v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
The general acceptance under the Frye test must be established by a preponderance of the evidence. 651 So.2d at 1168 (emphasis supplied.) We construe this language not to apply to the issue before us for to do so, we conclude, would conflict with the holding in Bundy I, on which we have relied.
cited Cited "see" Casias v. State
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995).
discussed Cited "see" Harrison v. State (2×)
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See generally Ramirez v. State, 651 So.2d 1164 (Fla.1995); Daniels v. State, 4 So.3d 745, 748-49 (Fla. 2d DCA 2009).
discussed Cited "see" State v. Armstrong
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995). [3] Dr. Cole admits that no court has excluded fingerprint evidence based on his proffered testimony, despite repeated attempts. [4] See Abreu, 406 F.3d at 1306 (noting that "[t]o assess the reliability of an expert opinion, [Federal courts] consider[] a number of factors, including those listed by the Supreme Court in Daubert ").
cited Cited "see" State v. Demeniuk
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164, 1166 (Fla.1995).
discussed Cited "see" Roberts v. State (2×)
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See id. at 141 (citing Ramirez v. State, 651 So.2d 1164, 1168 (Fla. 1995)).
cited Cited "see" US Sugar Corp. v. Henson
Fla. · 2002 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164, 1166-67 (Fla.1995).
examined Cited "see" Holy Cross Hosp., Inc. v. Marrone (3×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164 (Fla.1995)(holding under Frye the proponent must establish the general acceptance of both the underlying scientific principle and the testing procedure used to apply that principle to the facts of the case at hand); Cella v. United States, 998 F.2d 418, 425 (7th Cir.1993)("the Frye standard requires that the methodology and reasoning used by an expert in reaching a conclusion be generally accepted within the relative scientific community").
cited Cited "see" Davis v. Caterpillar, Inc.
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164, 1167-68 (Fla. 1995).
cited Cited "see" Kaelbel Wholesale, Inc. v. Soderstrom
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164 (Fla.1995).
discussed Cited "see" Baptist Hospital, Inc. v. Rawson
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Ramirez v. State, 651 So.2d 1164 (Fla.1995); Hadden v. Stale, 690 So.2d 573, 578 (Fla. 1997); Brim v. State, 695 So.2d 268, 271 (Fla.1997); Berry v. CSX Transp., Inc., 709 So.2d 552 (Fla. 1st DCA), rev. denied, 718 So.2d 167 (Fla.1998); E.I.
Joseph Jerome RAMIREZ, Appellant,
v.
STATE of Florida, Appellee.
78386.
Supreme Court of Florida.
Jan 5, 1995.
651 So. 2d 1164
Overton.
Cited by 72 opinions  |  Published

[*1165] Richard L. Hersch of the Law Offices of Richard Hersch, and David B. Honig of David B. Honig, P.A., Coconut Grove, for appellant.

[*1166] Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

OVERTON, Justice.

Ramirez appeals his conviction of first-degree murder and his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. This is Ramirez's second appeal to this Court. In his first appeal, this Court reversed Ramirez's murder conviction and vacated the death sentence imposed at his first trial. We did so because the State failed to establish a sufficient predicate for its expert's assertion that Ramirez's knife was the only knife in the world that could have caused the victim's wounds. Ramirez v. State (Ramirez I), 542 So.2d 352 (Fla. 1989). In the instant case, the State endeavored to comply with our instructions in Ramirez I by attempting to establish the reliability of the scientific tests supporting the expert's assertion at a hearing conducted immediately preceding Ramirez's second trial. Because we find that Ramirez was denied his due process right to present evidence refuting the State's evidence of reliability at the pretrial hearing, we must once again reverse his conviction.

The relevant facts surrounding this murder are reported in our previous opinion. See Ramirez, 542 So.2d at 352-54. Testimony at the first trial revealed that the murder victim had been stabbed twelve times and beaten in the head with a heavy object. At that trial, the State introduced into evidence a knife linked to Ramirez. Thereafter, an expert offered his opinion that, based on his scientific examination and comparison of a cast made from Ramirez's knife and a cast made from knife marks found on the victim's cartilage, Ramirez's knife was the only knife in the world that could have been used in the murder. On appeal, this Court stated: "[W]e find that no scientific predicate was established from independent evidence to show that a specific knife can be identified from the marks made on cartilage." 542 So.2d at 354-55. We found that the error in admitting the expert's testimony was not harmless and remanded for a new trial.

The record of the instant case indicates that the State requested a special hearing before Ramirez's retrial to present testimony and evidence to the trial judge relating to the reliability of knife-mark comparison evidence and its admissibility in the upcoming trial. The judge granted this request and the State presented documentary evidence as well as depositions and live testimony concerning the theory, practice, and procedures involved in knife-mark comparisons. Much of the testimony was challenged by the defense through vigorous cross-examination. At the close of the State's presentation at the pretrial hearing, defense counsel proffered an expert to testify against the scientific reliability of knife-mark comparisons. The trial judge refused to allow the defense to call the witness. The trial judge stated that any evidence presented by the defense to refute the reliability of knife mark-comparisons could be presented to the jury as the finder of fact, but such evidence was simply not relevant to the issue of basic admissibility.[1] Ramirez has challenged both the admissibility of this evidence and the trial judge's refusal to allow him to present his own expert at the admissibility hearing.

The admission into evidence of expert opinion testimony concerning a new or novel scientific principle is a four-step process. See generally Charles W. Ehrhardt, Florida[*1167] Evidence § 702.1 (1992 Edition); Michael H. Graham, Handbook of Florida Evidence § 90.702 (1987 Edition). First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. § 90.702, Fla. Stat. (1993) (adopted by the Florida Supreme Court in In re Florida Evidence Code, 372 So.2d 1369 (Fla. 1979)). Second, the trial judge must decide whether the expert's testimony is based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.1923). This standard, commonly referred to as the "Frye test," was expressly adopted by this Court in Bundy v. State, 471 So.2d 9, 18 (Fla. 1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), and Stokes v. State, 548 So.2d 188, 195 (Fla. 1989). The third step in the process is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue. § 90.702, Fla. Stat. (1993). All three of these initial steps are decisions to be made by the trial judge alone. See Johnson v. State, 393 So.2d 1069, 1072 (Fla. 1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); Rose v. State, 506 So.2d 467 (Fla. 1st DCA), review denied, 513 So.2d 1063 (Fla. 1987). Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject. Wuornos v. State, 644 So.2d 1000, 1010 (Fla. 1994) ("[T]he finder of fact is not necessarily required to accept [expert] testimony."); Walls v. State, 641 So.2d 381, 390 (Fla. 1994) ("[E]xpert opinion testimony [is] not necessarily binding even if uncontroverted.").

The second step, concerning whether to allow expert opinion testimony on a new or novel subject, is especially important to the process. As Professor Ehrhardt has explained:

When a novel type of opinion is offered, the proffering party must demonstrate the requirements of scientific acceptance and reliability. The most widely adopted test has been that of Frye v. United States which involved the admissibility of an early polygraph. The court held the evidence inadmissible because the underlying scientific principle was not "sufficiently established to have gained general acceptance in the particular field in which it belongs."

Ehrhardt, supra, § 702.2 (footnotes omitted).[2] The principal inquiry under the Frye test is whether the scientific theory or discovery from which an expert derives an opinion is reliable. We have not hesitated to utilize the Frye test to reject expert testimony concerning subjects that have not been proven to be sufficiently reliable. See, e.g., Ramos v. State, 496 So.2d 121, 123 (Fla. 1986) (testimony of dog-handler and police officer insufficient, by itself, to establish reliability of dog scent-discrimination lineups); Bundy v. State, 471 So.2d 9, 18 (Fla. 1985) (hypnotically refreshed testimony per se inadmissible), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), modified Morgan v. State, 537 So.2d 973 (Fla. 1989) (defendant's refreshed testimony may be admissible); Walsh v. State, 418 So.2d 1000, 1002 (Fla. 1982) ("[P]olygraph evidence is inadmissible in an adversary proceeding in this state."); Zeigler v. State, 402 So.2d 365, 373 (Fla. 1981) ("The results of a sodium butathol test are not admissible in a criminal prosecution."), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982).

The district courts of appeal have likewise refused to permit unreliable expert testimony to reach the jury. In Copeland v. State, 566 So.2d 856, 858 (Fla. 1st DCA 1990), the First District Court of Appeal found that the admission of expert testimony based on the "spermatozoa age test," where there was not a proper predicate to establish the scientific reliability, was error, and noted that "the only evidence presented was of noncontrolled experimentation by the crime analyst." In[*1168] Page v. Zordan, 564 So.2d 500, 502 (Fla. 2d DCA 1990), the Second District Court of Appeal held that it was error to permit an expert clinical psychologist to rely upon a "sexual abuse legitimacy scale" because no predicate was established concerning the acceptance of the test in the scientific community. In Crawford v. Shivashankar, 474 So.2d 873, 876 n. 4 (Fla. 1st DCA 1985), the First District Court held that the trial court was not required to accept an expert's "bald assertion" that thermography had received general acceptance in the relevant scientific community.

In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand. The trial judge has the sole responsibility to determine this question. The general acceptance under the Frye test must be established by a preponderance of the evidence.

Just as important as the burden of proof is the fact that the hearing must be conducted in a fair manner. There is no question that a hearing on the admissibility of novel scientific evidence is an adversarial proceeding in which conflicting evidence is presented to the trial judge as the trier of fact. Without the testimony of experts presented by both parties, the trial judge is denied a full presentation of relevant evidence. This is especially important in a criminal trial where the defendant is guaranteed certain constitutional rights, not the least of which is the due process right to present witnesses in one's behalf.

In the first trial of this case, we held that the State had not established the reliability of knife-mark comparison evidence when the proof of reliability was limited to the expert technician's statements that the technique was reliable together with an article the technician had written concerning the technique. Ramirez v. State, 542 So.2d 352, 354-55 (Fla. 1989). In the instant case, the State presented substantially more evidence of reliability that, if believed by the trial court, may have established the reliability of knife-mark comparisons.[3] However, it is impossible to determine whether the evidence presented by the State was sufficient to prove the reliability of knife-mark comparisons because Ramirez, despite his offer of proof, was denied the right to present any evidence to the contrary at the pretrial hearing.[4] This was a clear violation of Ramirez's due process rights. Without the presentation of Ramirez's evidence concerning the lack of reliability of knife-mark comparisons, the trial judge's determination that the evidence was reliable was error. We are unable to find that the error was harmless.

As we stated in our prior opinion in this case, the State is not precluded from introducing Ramirez's knife into evidence and presenting testimony that the wounds on the victim were consistent with that knife. That is not how the State decided to proceed and this case must again be retried. We request the Chief Judge of the Eleventh Judicial Circuit to do everything possible to expedite the retrial of this matter so that Ramirez's retrial will be commenced within 90 days from the date of mandate from this Court.

It is so ordered.

GRIMES, C.J., and SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.

1 The record of the pretrial hearing indicates that the trial judge did not comprehend the need for testimony proffered by the defense concerning the lack of reliability of knife-mark comparisons. The trial judge made the following comments in refusing defense counsel's proffer of its own expert:

We do not have a mini trial. We have a unilateral hearing outside the presence of the jury for the admission of the evidence, because all I rule on is its admissibility, not its weight. That will be left for the triers of fact, the jury, in this case. Now, I cannot comprehend what evidence the defense would have to offer that would be relevant to this issue. If you have got something to tell me that would make it relevant, tell me. But I don't know of any, and I am not going [to] permit defense testimony at this time.

(Emphasis added.) As will be explained in this opinion, these statements reflect the trial judge's misunderstanding of the procedures involved in a hearing on the admissibility of novel scientific evidence.

2 Professor Ehrhardt also notes that some Florida district courts of appeal had taken the position that section 90.403 of the Florida Evidence Code superseded the Frye test. Ehrhardt, supra, § 702.2. We clarified any confusion on this issue in Stokes where we noted that Florida continues to follow the Frye test. See also Flanagan v. State, 625 So.2d 827 (Fla. 1993).
3 We expressly decline to comment on whether the State has presented sufficient evidence to establish the reliability of knife-mark comparisons.
4 We approve the use of a pretrial hearing for the admissibility of evidence as was done in this case. While the trial judge may excuse the jury and conduct a hearing on admissibility during the trial, we find that the better procedure is to have the hearing before the trial begins. This will minimize any inconvenience to the jury. Cf. Cirack v. State, 201 So.2d 706 (Fla. 1967).