Florida’s New Daubert Rule Leads to Reversal of Conviction

Written on Thursday, October 10th, 2019 by T.C. Kelly
Filed under: ExpertWitness

The State of Florida charged Jabari Kemp with vehicular manslaughter, alleging that his reckless driving caused the deaths of five people. While Kemp’s postconviction proceedings were pending, the Florida Supreme Court adopted the Daubert standard for the evaluation of expert testimony. Applying the Daubert standard, the Florida Court of Appeals reversed the conviction and remanded for a new trial.

Facts of the Case

Kemp exited from I-95. When his vehicle reached the end of the exit ramp, it ran a red light and crashed into a Lexus sedan. An expert witness for the prosecution testified that Kemp’s vehicle was traveling at 128 mph.

To prove that Kemp was driving recklessly, the prosecution needed to establish that he was in control of his vehicle. Under Florida law, the mere loss of control of a vehicle does not constitute reckless driving. There was no suggestion that Kemp was incapable of controlling the car because of intoxication or any other voluntary action.

Kemp testified that he felt faint before he exited from I-95. At that time, he was driving at about 65 mph. He testified that he lost consciousness and does not recall the crash. His attorney theorized that he passed out with his foot on the accelerator, causing the car to speed up as it traveled down the exit ramp.

An eyewitness testified that Kemp’s car moved down the ramp in a straight line, giving the impression that the driver was unconscious. The eyewitness did not see brake lights illuminate as Kemp’s car traveled down the ramp or into the intersection.

The prosecution offered no reason why Kemp would choose to drive down an exit ramp at 128 mph and then run a red light. The prosecution’s only hope of getting a conviction rested with its effort to prove that Kemp applied the brakes before reaching the intersection in an unsuccessful attempt to avoid the collision.

The lead investigator, Corporal Johnson, testified that he saw tire marks on the exit ramp that he attributed to Kemp’s vehicle. He acknowledged that tire marks are not always caused by braking, but could be caused by steering or unspecified “other factors.” Rapid acceleration is presumably one of those factors.

Johnson opined that tire marks would require driver input. He acknowledged, however, that he did not know whether a driver must be in control of a vehicle to leave tire marks on the pavement.

Expert Testimony

If Kemp lost consciousness before the crash, he was not in control of his vehicle and could not have been driving recklessly. The prosecution relied on another police officer to establish that Kemp was braking, and therefore in conscious control of his vehicle, at the time of the crash.

Corporal Dooley, who calculated the estimated speed of Kemp’s vehicle, also testified that damage to the crash victim’s vehicle indicated that Kemp’s car was braking at the time of the crash. He based that opinion on the assertion that braking caused the front end of the braked car to “dip” and that the nature of the crash damage indicated that Kemp’s car had dipped at the moment of impact.

As is customary when police officers testify as experts, Dooley asserted that his opinion was based on his “training and experience.” When pressed as to whether his opinion was based on science, he testified “I can’t tell you about the scientific — or anything about the braking of the Mercedes. What I can tell you is the overall dynamics of a car to require to have shocks and struts and all these things and if you are accelerating, the front will go up. If you are decelerating it goes down — that’s all I can — I’m just telling you what it means to me.”

The prosecutor tried to rehabilitate Dooley by asking him whether his opinion was based on physics. Dooley readily agreed that it was, although he cited no principle of physics that informed his opinion. When defense counsel asked him whether any scientific studies supported his opinion, he testified “I’m sure that there are but I can’t quote anything specific.”

Dooley testified that he had watched car crashes as part of his training, but acknowledged that, other than learning that momentum shifts forward during acceleration and backward during deceleration, he could not cite “an actual case study or a doctor or scientist or whomever may have been out there looking at it” to support his opinion.

Appellate Opinion

Before the trial, Kemp challenged Dooley’s claimed ability to discern from crash damage that Kemp’s car had been braking. Citing Daubert, Kemp argued that Dooley failed to identify any reliable scientific methodology that would allow an expert to determine whether a car was braking by examining crash damage.

At that point, the Florida legislature had added the Daubert standard to the state’s rules of evidence, but the Florida Supreme Court had directed trial courts to continue using the Frye standard. Without holding either a Frye hearing or a Daubert hearing, the trial judge deferred to the prosecution’s request to admit the testimony.

While post-conviction proceedings were pending, Florida’s governor appointed new justices to the Florida Supreme Court. The new justices promptly adopted the Daubert standard. Since Kemp based his objection on the Daubert standard, and since the trial judge purported to apply the Daubert standard, the Court of Appeals concluded that Kemp was entitled to rely on that standard in postconviction proceedings.

The Court of Appeals faulted the trial judge for admitting Dooley’s testimony “without requiring that it satisfy any of the benchmarks of reliability set forth in Daubert.” Whether or not cars “dip” during braking, Dooley based his opinion that Kemp’s vehicle dipped on “eyeballing” the crash damage. He cited no evidence that his technique had been tested or peer reviewed. He did not explain whether his technique had a known error rate. He did not claim that other experts in the field generally form opinions about braking on “eyeballing” crash damage.

The court rejected the claim that unspecified “training and experience” is enough to satisfy a Daubert analysis. Rather, experts must demonstrate that they based their opinions on a reliable methodology. Dooley did not appear to base his opinion on any methodology, apart from looking at crash damage, guessing that Kemp’s car dipped before the crash, and attributing that speculative dip to braking.

While the appellate court was prepared to accept Dooley’s testimony that a front end “dip” could be related to a loss of momentum (notwithstanding Dooley’s inability to cite any scientific evidence for that proposition), the court was unwilling to credit Dooley’s claim that he could infer that Kemp’s vehicle was dipping from “the shape of the damage” to the accident victims’ vehicle.

Dooley’s claim that the crash damage was “curling downward” was undercut by his admission that “I’m just testifying as to what this looks like to me.” Given his testimony that his accident reconstruction class did not cover the cause of collision damage that appears to “curl downward,” he was not qualified to give an expert opinion as to whether only a decelerating car could have caused the damage he saw.

The Court of Appeals concluded that nothing in Dooley’s testimony explained how his “experience led to the conclusion he reached, why that experience was a sufficient basis for the braking opinion, and just how that experience was reliably applied to the facts of this case.” Accordingly, the trial judge erred by allowing Dooley to testify that Kemp’s car was braking at the moment of impact.

Lesson Learned

While the insurance industry has championed the claim that Daubert shields corporate defendants from “junk science,” criminal defendants are the true beneficiaries of the Daubert standard. Unfortunately, trial judges who have grown accustomed to allowing prosecutors to present doubtful guesswork under the guise of expert testimony have not always understood that Daubert applies to criminal cases, not just to toxic tort lawsuits.

Kemp’s case illustrates the importance of challenging police officers whenever they give expert testimony. The minimal training in accident reconstruction that police officers receive is a far cry from the engineering backgrounds that actual experts rely upon when they form accident reconstruction opinions. Challenging the testimony of police officers who are not qualified to testify as experts — and raising that challenge again on appeal if it is rejected by a prosecution-friendly trial judge — is critical to effective advocacy. Consulting with an actual expert may also provide crucial evidence that can make the difference between a conviction and an acquittal.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.