District of Columbia Court of Appeals Finds Daubert Hearing Didn’t Need to be Held in Arson Retrial

Federal Rule of Evidence 702 (like many state counterparts), provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

When a party seeks to introduce expert testimony, a court often holds a Daubert hearing, named after the Supreme Court case that changed the test for the admissibility of expert opinion from the Frye standard that focused on the general acceptance of the expert’s technique/technology to a multi-factor test. But does a Daubert hearing always need to be held? That was the question addressed by the District of Columbia Court of Appeals in its recent opinion in Lewis v. United States, 2021 WL 5707009 (D.C.App. 2021).

In Lewis, Jerome Lewis was convicted

of first-degree felony murder with aggravating circumstances, the underlying felony of first-degree cruelty to children, and second-degree murder as a lesser included offense of the charge of first-degree felony murder (arson). (The jury acquitted appellant of arson and of first-degree felony murder predicated on that felony.) These charges were based on evidence that appellant set a fire in the basement of his house in the middle of the night – a fire that filled the upper floors with smoke and resulted in the death from smoke inhalation of a four-year-old child.

These convictions came after a second trial because Lewis’s first trial ended with a hung jury. Lewis was convicted in part based upon the testimony of “Lee McCarthy, a fire investigator at the ATF’s Fire Research Lab.” At the time of Lewis’s first trial, D.C. applied the Frye standard, and Lewis was allowed to testify. Before the second trial, Lewis unsuccessfully moved for a Daubert hearing, and the District of Columbia Court of Appeals upheld this decision on appeal. According to the court,

“[T]here is no particular procedure tha t the trial court is required to follow in executing its gatekeeping function under Daubert,” and the court has the discretion “to avoid unnecessary reliability proceedings.”Rule 702 and Daubert do not require a pretrial evidentiary hearing as long as the trial court has a sufficient evidentiary basis without it for its decision. In Kumho Tire, for example, the Supreme Court upheld a reliability determination based on the trial court’s review of the proposed expert’s deposition testimony.

Here, the trial judge reviewed the transcript of McCarthy’s expert testimony at appellant’s first trial to make the threshold reliability determination required by Rule 702. This was neither unreasonable nor unfair to appellant. In the first trial, McCarthy fully described his testing principles and methodology and their application to the evidence in this case, and appellant had and exercised the opportunity to challenge his expert opinion testimony by cross-examination and argument. McCarthy’s testimony at the retrial did not materially diverge from his earlier testimony. The judge found it “clear” from the transcript that McCarthy reached his conclusions in this case by applying scientific principles of fire origin and causation (along with his own “vast” experience) in tests designed to cover the range of possible conditions under which the fire occurred. The judge also specifically considered factors identified in Daubert as potentially bearing on reliability of McCarthy’s methods and their applicability in this case. Among other things, the judge noted that McCarthy employed “principles that are longstanding principles for use in the field” and invoked “a number of national studies…as a basis for some of the conclusions that he reache[d]”; that McCarthy evaluated alternative possible explanations for the fire; that McCarthy explained how and why the evidence supported his conclusions; and that McCarthy was not “extrapolating from a premise to an unfounded conclusion.”

Because the trial judge was able to make a preliminary reliability determination based on the evidentiary record from appellant’s first trial, we conclude the judge did not abuse his discretion by denying appellant’s request for a pretrial Daubert hearing. Such a hearing was not necessary to comply with Rule 702.

-CM