© 2009 Delmar, Cengage Learning

The Expert Witness

Chapter 22

© 2009 Delmar, Cengage Learning

Objectives

• Describe the role of the first responder investigator and this investigator’s possible involvement in a court trial

• Describe the basic premises in the Daubert, Frye, and Kumho cases as they relate to the testimony of an expert witness

• Describe Federal Rule 702 and its impact on the fire investigator

© 2009 Delmar, Cengage Learning

Case Studies

• Frye v. United States– Before something can be admitted into court as an

expert opinion, it must have scientific recognition and general acceptance in that specific field

• Daubert, et al. v. Merrell Dow Pharmaceuticals– Testimony cannot be allowed unless generally

accepted in that relevant scientific community

• Kumho Tire Co. v. Carmichael– Daubert applies to all experts, not just scientists

© 2009 Delmar, Cengage Learning

Introduction

• Daubert or Frye has affected almost every federal court case involving expert testimony for the past 80 years

• Under Federal Rule 702 the expert witness is to testify if qualified by their knowledge, skill, experience, training, or education

• Fire investigators must be knowledgeable in all of the rules of the court for which they are about to testify

© 2009 Delmar, Cengage Learning

The First Responder Investigator and Court

• A completely filled out fire report includes the identification of the area of origin and the cause of the fire

• The first responder investigator may receive a subpoena to testify– The first call should go up the chain of command

• There is little doubt that the assigned investigator will assist and no doubt that the jurisdiction’s legal counsel will provide guidance

© 2009 Delmar, Cengage Learning

The First Responder Investigator and Court (cont’d.)

• The first responder investigator may receive a subpoena to testify– There is no way to predict what will happen

• Most likely, the first responder’s level of training, years of firefighting experience, and expertise will be sufficient to allow that investigator to testify

© 2009 Delmar, Cengage Learning

Court Rules

• Federal and state courts have an abundance of rules for every aspect of the trial – A general rule of thumb is that if you can meet

Federal Rule 702, you should have little problem testifying

© 2009 Delmar, Cengage Learning

Federal Rule 702

• In 2000, Rule 702 was updated based on the Daubert/Kumho/Joiner trilogy– Helped to solidify that the courts do need to act as

gatekeepers

© 2009 Delmar, Cengage Learning

Federal Rule 702 (cont’d.)

• Synopsis of Rule 702– If specialized knowledge will assist the trier of fact to

understand the evidence• A witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:

• The testimony is based upon sufficient facts or data

• The testimony is the product of reliable principles and methods

• The witness has applied the principles and methods reliably to the facts of the case

© 2009 Delmar, Cengage Learning

The Future of Courtroom Testimony

• The fire service and the fire investigative field have not heard the last of the Daubert issues – The first step is education on the law, the courts, and

the rules associated with courtroom testimony

© 2009 Delmar, Cengage Learning

The Future of Courtroom Testimony

• In the Benfield case, the court allowed the insurance fire investigator to testify based on his credentials– However, following cross-examination, the testimony

was stricken – The expert did not cite any scientific theory and

applied no scientific method – The Benfield decision was not a Supreme Court

decision and, at the time of publication, was an isolated case

© 2009 Delmar, Cengage Learning

Summary

• The assigned investigator ends up in criminal court on a regular basis

• The Frye, Daubert, and Kumho cases involve the testimony of an expert witness, so they affect the fire service

• Congress created the Federal Rules for court cases, and Rule 702 affirms that the trial court is the gatekeeper