The use of criteria set forth in Kelly Frey for the admissibility of evidence in dog bite cases by the California dog bite expert witness is sorely needed. Trial judges overseeing dog bite civil cases have repeatedly failed to apply these criteria when ruling on what evidence should be placed before a jury by the California dog bite expert witness. As a result, a lot of nonsense about dog behavior, dog aggression, and dog bites enters the courtroom, and this nonsense is almost always propagated by dog bite experts and dog trainers who lack training in the science of animal behavior.
Knowledge about the fundamentals of animal behavior science is absolutely necessary for an expert’s competence in dog bite analysis. Unfortunately, this is usually overlooked by even the most competent attorneys. Dog bite attorneys need to be more forceful in insisting that the dog bite experts they retain use a scientifically-based analysis which meets the standards set by Kelly-Frye.
Poorly qualified animal behavior experts take advantage of California evidence code EVID 720 which states the qualifications for an “expert” regardless of specialty.
(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.
(b) A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.
Animal behavior opinion by a California dog bite expert witness can meet Kelly-Frye criteria provided that the following is understood:
- Animal behavior is an established scientific discipline and properly qualified animal behaviorists exist to render an expert opinion. Animal behavior is a multidiscipline, observational science taught at nearly every major university in the world. Animal behavior science has become increasingly technical in nature, and advanced degrees are offered in this field. Many academic, peer-reviewed journals dedicate themselves to original research in animal behavior, including research about canine behavior and dog aggression. Various certification programs are available to canine behavioral scientists. The qualifications of a dog bite expert lacking certification in animal behavior surely need to be questioned. I know of dog bite experts who misleadingly present themselves and dups attorneys into believing that they are “certified”, but certified in what? The certification of these self-proclaimed dog bite experts is not in the field of animal behavior!
- The methods used in animal behavior are reliable and can be used to formulate an opinion about legal issues such as liability and negligence. Specifically, the science is concerned with an objective description in terms of what an animal does, and the multitude of variables that affect overt behavior, and not what the dog is thinking or how the dog is feeling. Data in the science is collected through a variety of means, which include interview techniques, surveys, behavioral rating scales, video and audio analysis, and blood, urine, neurological and genetic analysis. The methods used in the science are no different from the methods the applied animal behaviorist has at his disposal to analyze a dog involved in a dog bite incident.
- Principles and findings developed in animal behavior can be applied to the actions of a dog in any given dog bite case. Moreover, these principles and findings would be shared by the majority of animal behaviorists. Opinions understandably can differ amongst experts, however. Specifically, some broad sweeping generalizations from the science of animal behavior would indicate that: (a) Aggressive behavior in dogs can become habitual and is affected by contextual variables, learning experiences and reinforcement history; (b) Owner behavior has a marked influence on the behavior of companion dogs; (c) A dog’s temperament in part is affected by breed characteristics and past experiences, and is predictive of future behavior in a given set of circumstances; (d) Aggression in dogs is patterned and has predictable sequences when directed towards a human.
- Information derived from the observations of witnesses, and owner descriptions about the behavioral and medical history of the dog and how the dog was maintained, provide sufficient information for the animal behavior expert to render credible and scientifically based opinions, provided that these observations are consistent with animal behavior theory.
In conclusion, animal behavior opinions about the behavior of a dog are reliable and can be proffered with a low error rate provided that the expert has collected a sufficient amount of discovery about the dog from reliable sources. In addition, in some dog bite cases, a dog’s temperament can be evaluated and tested using evaluation criteria derived from temperament tests recognized as valid and reliable by animal behavior scientists.
Read more about Kelly Fry and Daubert as applied expert witness testimony
- The Evolving Standards of Admissibility of Scientific Evidence
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
- What is the Daubert standard?
- Frye’d by admissibility standards: does the standard of admissibility in state court make any difference in practice?
- Frye standard – Wikipedia page
- From Frye to Daubert: What You Need to Know About Admitting Expert Testimony in Florida State Courts
Richard Polsky, Ph.D. is animal behavior expert witness located in Los Angeles.