Why Kentucky has gone to the dogs
--a closer look at Kumho Tire and “experience-based” experts
By Susan Jackson Balliet
(footnotes have been removed for podcasting)
Maybe it’s because Kentucky is an ancient Indian hunting ground. Maybe Kentuckians revere their hunting dogs more than other folk do. Or maybe Kumho Tire didn’t provide firm enough guidance on how to evaluate the reliability of “experience-based” expertise. Whatever the reason, two recent Kentucky Supreme Court opinions, DeBruler and Yell, uphold long prison sentences by largely exempting tracker dogs, arson sniffer dogs, and their handlers, from the rigor of scientific scrutiny. DeBruler holds that a dog’s opinion (regarding the trail of the owner of certain clothes) is not subject to Daubert,and comes in at trial regardless whether it is “scientifically” reliable. Yell goes further by allowing juries to hear a dog’s opinion that accelerants were present (and a fire was arson) despite 100% negative scientific lab results debunking the dog. With these two opinions, Kentucky has –at a minimum--violated Janeane Garofalo’s famous advice, roughly paraphrased: “It’s okay to trust your dog, but just don’t over-trust your dog.”
Unfortunately, in addition, DeBruler and Yell also violate Kumho Tire. Almost a decade ago, Kentucky adopted Kumho Tire, acknowledging that KRE §702 requires Daubert gatekeeper scrutiny for all expert testimony, including non-scientific, “experience-based” expertise like that of dog handlers.This article argues that while the Kumho Tire standard for evaluating non-scientific, and “skill or experience-based” expertise may not be crystal clear, Kentucky has gone off-track by failing to apply it at all. Taking a close look at Kumho Tire and how our courts ignore and dodge it in DeBruler and Yell will help us understand how to deal with all non-scientific “experience-based” experts. Daubert and Kumho Tire are our friends in any fight to keep “experience-based” expertise from coming in and prejudicing our clients. We need to keep these two cases close at hand.
Ignoring Kumho Tire by sticking to an ancient “foundation” test
The strongest evidence tying DeBruler to a kidnap and robbery was the fact that two German Shepherds sniffed some of his clothes, then ran around the crime scene in a way their handlers interpreted to mean, “The owner of the clothes was here!” There was no other evidence tying DeBruler to the crime. The expertise of a dog handler working with a trained dog qualifies as non-scientific “skill or experience-based” expertise that Kumho Tire says must comply with Daubert. But the Kentucky Supreme Court held that in order to determine the reliability of the dogs, no Daubert hearing or inquiry was necessary. All that was necessary was to comply with Kentucky’s 109-year-old procedure of putting the dog-handler on the stand to establish a few bare foundational facts:
“that the dog [was] of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, …that the dog in question [was] possessed of these qualities, and [had] been trained or tested in their exercise in the tracking of human beings….
Henceforth, under DeBruler, once the foundational facts are established, a dog handler can –supposedly reliably—tell a jury what he thinks his dog thought. In DeBruler, the dog handlers’ testimony that their dogs thought DeBruler had been at the kidnap crime scene was devastating. Based on the dog evidence alone, DeBruler got a life sentence.
Similarly, when Robert Yell was accused of intentionally burning down his home, killing one child, and severely burning another, probably the most damaging, prejudicial evidence was that PJ, a sniffer dog, “alerted” at six locations in Yell’s burned-out trailer. According to PJ’s handler, this behavior meant PJ had detected accelerant at each and every one of the six locations. Using state-of-the-art science, the lab was unable to confirm PJ’s opinion, and the six samples all came back “negative” for accelerant. Despite this, the Court in Yell found there was a sufficient showing of reliability for PJ the dog. PJ’s opinion that accelerants were present, and the fire was no accident, was presented to Yell’s jury. The jury convicted Yell of intentional arson, and gave him 52 years.
Dodging Kumho Tire by improvising a loose “totality” test
The underlying problem in both DeBruler and Yell is that the Kentucky Supreme Court pretty much ignored the Daubert factors that Kumho Tire said “should” be considered. Instead of the Daubert factors, the DeBruler court stubbornly applied an ancient foundational formula, ignoring the fact that it requires less reliability than Daubert and Kumho Tire. In Yell the Court articulated no standard, and simply listed everything that tended to support PJ’s reliability. In effect, the Yell Court dodged Kumho Tire by inventing its own, easier, totality-of-circumstances-we-know-reliable-when-we-see-it standard. As in DeBruler, the Court in Yell made no effort to determine whether their totality-of-circumstances standard insured the high level of reliability required by Kumho Tire and Daubert. Indeed, as recognized by two dissenting Kentucky Supreme Court justices, the improvised Yell standard failed to establish PJ’s reliability.
Yell’s “totality” test does not satisfy Kumho Tire
The factors that supposedly added up to reliability in Yell included: 1) in training PJ had “proved” ability to identify as little as one-half eye-dropper of accelerant in control samples;2) in two prior cases where PJ’s samples tested negative in the lab, the defendants later confessed they had used accelerants where PJ alerted;and 3) two methods used by PJ’s handler –including, a) “calibration” --i.e., getting PJ to alert prior to entering the scene on a known sample of accelerant, and b) having PJ re-identify her alerted-on trailer samples, plus a non-accelerant control sample, away from the crime scene, helped to insure PJ’s reliability.Yell contains no discussion why it chose the factors it chose, and no claim that these factors add up to Kumho Tire reliability.
In fact, the Yell factors add up to less than Kumho Tire reliability. When you add up the fact that in training PJ identified a small quantity of accelerant (not necessarily less than 15-20 parts per million), that twice PJ’s unconfirmed alerts coincided with defendant confessions, and whatever it was that PJ identified in Yell’s trailer, she identified it again outside, this is not good enough to meet the reliability standard of Kumho Tire. With the lab results failing to confirm accelerants, and no documentation showing PJ’s error rate, or the error rate in general of dogs trained in her program, the court was forced to rely on the say-so of PJ’s handler that PJ was reliable. And relying on the bare say-so, or “ipse dixit” of an expert is expressly forbidden by Goodyear Tire and Rubber Co. v. Thompson, Kentucky’s version of Kumho Tire.
DeBruler and Yell fail to assess underlying methodology
Neither DeBruler nor Yell mention anything about the reliability of the underlying methodology, i.e., the system of training that produced PJ or the German Shepherds. Yet, Daubert and Kumho Tire require a great deal more than just establishing the reliability of specific dogs, or specific experts. These cases interpret Rule 702 as requiring the qualification of the entire underlying field of knowledge or expertise as reliable. The dog handlers in DeBruler and Yell had no expertise in designing or evaluating the soundness of the entire underlying training programs that produced their dogs. Even had they been asked, arguably they were not qualified to establish over-all reliability of the methodology that produced their dogs.
Qualifying a field of knowledge takes more than a lab tech, or a dog handler.
Unfortunately, in Fugate, the Kentucky Supreme Court held that a mere lab tech was qualified to testify that DNA testing in general was reliable. But it’s important to note that the Court carefully bolstered the lab tech’s opinion by taking judicial notice that many courts had already found DNA reliable. If the Court in Fugate felt the lab tech was qualified on her own to establish the bone fides of the entire field of DNA, it would not have painstakingly listed other cases and taken judicial notice.
By contrast, no judicial notice of the reliability of sniffer dogs, for instance, was or is possible because so many states reject the reliability of uncorroborated sniffer alerts. In any case, like this one, where judicial notice is not feasible, we should argue that a mere lab tech, or individual dog handler, is incompetent, and unqualified to establish the bona fides of the entire underlying field of knowledge. It took more than a lab tech in Fugate. It should take more than a lab tech in any case.
Our clients are entitled to Daubert hearings on all experts, including dogs.
Kumho Tire made clear that Daubert applies to all expert testimony, specifically including “experience-based” expert testimony. And Goodyear Tire confirmed that to establish the reliability of “other specialized knowledge” as well as scientific knowledge, a hearing is mandatory. DeBruler’s holding that no Daubert hearing is required in a tracker dog case is contrary to Goodyear Tire, and should be challenged. Any client facing a dog handler is entitled to a hearing to determine whether or not this dog, this dog handler, and the underlying methodology used to train and score this dog and its handler, are reliable enough to meet the admissibility standard of Rule 702, Daubert and Kumho Tire. Under Fugate and Johnson, our clients are entitled to challenge any expertise, no matter how non-scientific and no matter how time-honored as reliable.
After a prima facie showing of unreliability –before the hearing, or at the hearing—the burden shifts to the Commonwealth to prove by a preponderance that both the underlying methodology and this particular dog and handler satisfy not some 109-year-old foundational rule, not some ad hoc “totality” test, but the standard established in Kumho Tire for non-scientific experts.
What IS the Kumho Tire standard for non-scientific experts?
Kumho Tire said that when dealing with non-scientific experience-based expertise, courts “may” consider Daubert’s “factors” (testing, peer review/ publication, known or potential error rate, existence of standards, and general acceptance). The Court emphasized that its use of the word “may” reflects that the Rule 702 inquiry is “flexible,” i.e., that the Daubert factors apply more loosely to non-scientific “skill or experience-based” expertise. But here’s the part that everyone keeps forgetting. Kumho Tire also said that “a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.”[
By saying that the Daubert factors for evaluating the reliability of scientific expertise should be considered whenever they reasonably can be applied to non-scientific expertise, Kumho Tire arguably created a mandate that whenever a Daubert factor reasonably can apply, it must be applied. Kumho Tire opened the door wide for argument regarding which specific Daubert factors are “reasonable measures” of the reliability of whatever area of knowledge we are dealing with.
For instance, in Yell, PJ’s skills had not been recertified for four months before the fire (lack of testing), she had never been trained on lighter fluid (lack of testing), no one --including her handler-- had any record of where, or how, or with what encouragement she alerted in Yell’s trailer, or in any of her other crime scenes (failure to establish error rate), there was no record of PJ’s accuracy rate, no log on her field work, and no data regarding how many times the lab had failed to confirm her opinion (failure re: error rate). All these deficiencies and failures are readily measurable under the Daubert factors of testing, known or potential error rate, and compliance with existing standards. It is possible to test dogs and their handlers, and to establish error rates. These Daubert factors could have reasonably, easily, been applied to measure PJ and her field of knowledge to find them both lacking. It was a violation of Kumho Tire not to consider and apply them.
DeBruler’s old “foundation” test does not satisfy Kumho Tire
Instead of Kumho Tire, the DeBruler Court applied a 109-year-old rule calling merely for “foundational evidence of the canine's scent tracking record; the qualifications of its handler, [and] its training and history.” This violates Kumho Tire and Goodyear Tire because it allows reliability to be proved up by the “ipse dixit” of the handlers. The DeBruler Court admitted that the handlers’ testimony was limited to “their personal observations of the dogs' actions, and their interpretation of these actions based on experience and training.” By finding that was enough, the Court violated Kumho Tire and Goodyear Tire.
The DeBruler Court understood that Kumho Tire is permissive, but misunderstood what Kumho Tire is permissive about. Neither Kumho Tire nor Goodyear Tire are permissive about Daubert. Both expressly make a Daubert inquiry mandatory for all expert testimony. The only thing Kumho Tire makes permissive is which Daubert factors apply to any given non-scientific knowledge. Even that permissiveness is limited, and whenever a Daubert factor can reasonably be applied, Kumho Tire says it should be applied. By creating an “investigative technique” exception to Kumho Tire and requiring evidence of “training” or “testing” without setting any standard, or acceptable error rate for either, the DeBruler Court has missed the point of Kumho Tire. Kumho Tire requires that insofar as they apply, the Daubert factors must be satisfied. Only insofar as they do not apply, other presumably equivalent tests for reliability “may” be identified and satisfied.
So, what do we do?
Based on the four cases cited in DeBruler in support of its decision not to apply Daubert, it is safe to say that Kentucky is not the only state that’s confused regarding the applicability of Kumho Tire and the Daubert factors to non-scientific, “experience-based” expertise. Apparently the United States Supreme Court needs to clarify that Kumho Tire renders the Daubert factors applicable in every case they can reasonably apply to. In anticipation of the day our highest court so rules, we must continue to challenge and preserve reliability issues in all cases involving dogs, and other non-scientific experts.
If tracker dog, or arson dog, or other non-scientific expert evidence is set to come in against your client, challenge the dog, its handler, the expert. Demand a Daubert hearing regardless of what it says in DeBruler or Yell. Demand discovery of all records from the dog’s, the handler’s, or the other expert’s training, including all records (including lab results) from past cases the dog has worked on, and all records related to the design and reliability of the training programs and certification the dog, the handler, or other expert attended. Object if the court tries to apply any standard but Daubert and Kumho Tire.
Figure out which of the Daubert factors could reasonably apply to help evaluate the reliability of the expertise you are dealing with. Argue that Kumho Tire says the court “should” consider any and all Daubert factors “where they are reasonable measures of the reliability of expert testimony.” If your court insists that Daubert does not apply, put on evidence and argue that whatever factor or standard the court proposes to consider instead of (or in addition to) the Daubert factors is not as reliable as the Daubert factors.
For tracker dog cases, if you fail to convince the trial court to apply Daubert, and Kumho Tire, then argue that in this case the dog’s scent tracking record, the qualifications of the handler, and the dog’s training and history are insufficient to establish the dog’s reliability even under the “foundation” requirements of DeBruler and Pedigo. For arson cases, given Yell’s loose totality approach, you will need to be prepared to attack each factor the Commonwealth might point to in support of reliability, and to argue that the factors pointing to reliability are not strong enough, not supported by enough data.
Remember to say “14th Amendment due process,” “fundamental fairness,” and “Chambers v. Mississippi.”
Be sure you also mention “14th Amendment due process” and “fundamental fairness” when you make a Daubert objection. Both Daubert and Kumho Tire are based on Federal Rule of Evidence §702, and not on the federal Constitution. States are not required to follow federal court interpretations of federal evidence rules when applying their own rules of evidence. So if you don’t say “14th Amendment due process” in addition to “Daubert,” your client will have a hard row to hoe in federal court. Your client will have to prove not only that the expert evidence was totally unreliable, but also that you performed deficiently by failing to preserve a federal challenge.
Sixth Circuit overturns admission of “bite mark” evidence.
And there is hope for overturning bad Daubert rulings in federal court. In 2007, the 6th Circuit granted habeas relief when a trial court admitted “bite mark” evidence that was so unreliable, and so prejudicial that the court 6th Circuit found it had deprived the defendant of due processThe Ege court found that the state court’s admission of bite mark evidence was an unreasonable application of Chambers v. Mississippi, which held that “trial court errors cannot be allowed to defeat the ends of justice” or otherwise deprive a defendant of a fair trial The Ege case confirms that the federal courts, at least, will protect our clients when expert opinion is so unreliable and so prejudicial that the 14th Amendment due process clause has been violated.
And remember, it’s still okay to love your pets….