I agree the courts agree influencing the actions taken by the fire investigator and how they conduct an investigation. Yes, the courts require the methodology used be one that is accepted. What the court does not do is require a specific methodology. As an example, the court does not require the fire investigator to follow the steps of the scientific method as it is outlined in 921. There can be more steps, less steps, or even the steps in a different order. During a Daubert challenge the court is limited to the reliability of expert testimony. The reliability is to be ensured by a requirement that there be a valid scientific connection to the pertinent inquiry as a precondition to admissibility. This connection is to be examined in light of a preliminary assessment by the trial court of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue. These involve whether or not the technique had been subjected to peer review and/or publication, the known or potential rate of error, the existence of standards controlling the technique's operation, the technique's refutability or, more simply put, testability, and, finally, an incorporation of the Frye general acceptance in the scientific community as only a factor in the analysis.

The court is concerned with the methodology employed and not the expert’s conclusions. The question the court is concerned with in accepting a witness’ testimony is the methodology been subjected to peer review or publication. The courts have said the quality of the evidence used in reaching the conclusion is not part of the assessment as to the methodology. The quality of the evidence is to be determined by the trier of fact.

This is a clear indication that the courts are separation the evidence from the methodology when qualifying an expert.

I am not saying that the explaining of the methodology used to the trier of fact does not influence the receptiveness of the evidence. I believe it does. Explaining the methodology to the trier of fact is secondary to explaining it during a Daubert challenge.

Jim Mazerat
Forensic Investigations Group