1. The Expert Witness
Chapter 22
© 2009 Delmar, Cengage Learning

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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
© 2009 Delmar, Cengage Learning