COAKY holds specialty licensure not necessary under Daubert, though it is factor to be considered; also finds error in trial court’s failure to hold Daubert hearing or at least make record supporting conclusions

By David Kramer | dkramer@dbllaw.com

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In a recent criminal case that has broad applicability to civil actions, Lukjan v. Commonwealth, 358 S.W.3d 33 (Ky. App. 2012), the Kentucky Court of Appeals discussed the admissibility of expert testimony and evidence in an arson case.

The primary issues in Lukjan involved the Daubert standard for admissibility of expert testimony. The Court of Appeals held that a license from the Kentucky Board of Licensure for Private Investigators, required under KRS Ch. 329A for someone to “hold himself or herself out to the public as a private investigator,” including “engaging in the business of obtaining or furnishing information with reference to … [t]he cause or responsibility for fires,” is not a prerequisite for someone who is otherwise qualified to testify as an expert witness regarding the cause of a fire. Rather, the Court found that specialty licensure is a factor to be considered by the trial court under KRE 702 and Daubert. The defendant’s expert who had been excluded by the trial court had taught courses related to fire safety and fire investigations. The Court directed the trial court to determine from all the evidence whether the excluded expert met the criteria of KRE 702.

Conversely, in regards to the expert witnesses called by the Commonwealth, the Court held that the circuit court had failed to meet the requirements of KRE 702 and Daubert by not conducting an evidentiary hearing or considering an adequate record of the reliability of the Commonwealth’s expert testimony. Under Kentucky and federal law, a trial court generally must conduct a Daubert hearing unless it makes a statement on the record that the court has reviewed relevant material and has made findings of the reliability of the expert’s testimony. In doing so, the trial court does not have to expressly recite the Daubert factors as long as the record establishes that the court conducted a Daubert inquiry.

The Court reversed the defendant’s arson conviction and remanded for a new trial based on these errors.

Lukjan is final and has been published in the South Western Reporter.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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