Why so Low? Rule 702 “Hurdle” and who is an expert

Why so Low? Rule 702 “Hurdle” and who is an expert

If you stopped and asked anyone (other than a lawyer) what type of education, training and experience one would have to have in order to be qualified in court as an expert witness, you will get varying responses. Some will say PhD. Others will say a PhD with some years of experience. Some others will state something else. Most people will answer that an expert in court has to be much closer to Einstein than say Snooki on a scale of intelligence and education. But you know what??? All of those people are wrong.

This is the bane of my current existence. Pretty much all I do is forensic science cases all over the place. It is the same sad song in jurisdiction to over to another jurisdiction to another, and across all forms and disciplines of science as it is currently presented in the courtroom in the United States. From Bexar County Texas to West Palm Beach, FL to San Mateo, CA to all points in Pennsylvania, the pattern is the same:

Judges are quick to hold admissibility hearings on experts that the defense call.

They are reluctant (read as not not at all) inclined to hold admissibility hearings on government called witnesses.

This provides for the sickening festering grounds that allow for the propagation of scientific error because as history has taught with now discredited forensic science disciplines, once the discipline is first admitted, it remains forever even in the face of the broader true scientific community resoundingly refuting and invalidating it. This leads to the constant amazing ability of psuedo-scientists who uses para-forensic science practices and techniques in a non-standardized and non-validated way to make vast unsupported conclusions in court. The clear pattern is to purposefully recruit and train people, such as Troopers and police officers, who have no hard science background, and train them minimally and not at in keeping with the broader scientific community. In the broader scientific community assays are discussed in terms of their limitations first, and what the robust validation study shows second. Instead, these recruits are taught by the manufacturers and programmers in the over-hyped infallibility of their technique.

The sad state of affairs in modern national 702 and 705 jurisprudence is that in order to meet the hurdle of being able to give an “expert” opinion in the United States, all one truly needs is to:

  1. possess “reasonable pretension” of the subject area, and
  2. have a scope of knowledge in that area only “above the ken of a lay person.”

That is amazingly low.
Too darn low.

So in other simpler terms if you read some blogs and merely attend a class, and have never proven retention or proficiency in your technique, you too can meet the 702/705 burden. Heck, you never even have to personally perform the technique in question, just read up on it more than the next fellow.

What was supposed to be a threshold question of competence has been so far diluted that the observation I made 3 years ago as a joke has become an axiom in modern courtrooms “Do you believe that you know just a little bit more than your next door neighbor in a scientific subject regardless of the source of that knowledge? Then you too can become an expert in court!”

In Pennsylvania and elsewhere, any Fyre related challenge goes to the technology or method used, not typically the person using it, in criminal law. Everything else pretty much sadly goes to weight.

So, can even a high school graduate Trooper who has been to only one class put on by some equipment or software manufacturer be qualified as an expert in the vastly complicated field of Radio Link Protocol (RLP) which is an automatic repeat request (ARQ) fragmentation protocol used over a wireless (typically cellular) air interface?

You betcha!

Can this minimally trained person provide a foundation that will survive appellate scrutiny that will allow his or her opinion?

You betcha! Goes to weight, the appellate courts say.

Now try to bring into that same case a classically trained engineer or scientist such as a AME/ACE certified person, a certified Cell Phone and GPS Signals Analyst (CSA), a Certified Steganography Examiner (CSE), a Certified Computer Examiner (CCE), a PE or a CDMA Certified DE or a Cisco Certified Network Associate (CCNA), or Cisco Certified Entry Networking Technician (CCENT), or Cisco Certified Network Professional (CCNP), or Cisco Certified Network Associate Security (CCNA Security) and see how quick the government requests and actually gets a hearing on this. It amazes me.

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