Chapter 22


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Chapter 22

  1. 1. The Expert Witness Chapter 22 © 2009 Delmar, Cengage Learning
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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