- Created on 05 June 2010
- Last Updated on 19 March 2014
- Written by Fred M. Kray
- Hits: 2079
Use of Experts
One of the questions that is bound to come up as you get ready to try your case before the initial fact finder, is whether you should call an expert witness on animal behavior or temperment. Such a witness could arguably give opinion evidence on issues such as provocation, the overall temperment of the dog, and whether the dog is, in fact, dangerous.
The first question is a practical one. Can your client afford to hire an expert, or can you get one gratis? Obviously if the answer is no, that is the end of the inquiry.
The second question is a legal one. Is such testimony relevant in the statutory scheme under which you are trying the case. The government takes the position that the dangerous dog statutes are strict liability and therefore nothing matters except whether the dog took action as defined under the statute as required. General temperment is irrelevant, as is the dog's instincts.
In a close case, an expert may be helpful. The failure to allow the defense to call an expert may be the basis of reversible error, but only if the qualifications are set forth in the record and a proffer is made of his or her testimony. I can see the fact finder just not allowing any testimony on the issue and that becoming an appellate issue.
Applicable Case Law
Sinclair v. Okata, 874 F. Supp. 1051 (D. Alaska 1994) - This was a civil dog bite damage case. It does discuss the use of an expert on the issue of whether a dog had vicious propensities. The expert examined prior biting incidents and determined that they were the result of overstimulation, protective instincts, and chase instincts. They were not, the expert opined, the result of vicousness but responses common to all dogs. The court ruled that the expert's opinion created an issue of fact precluding summary judgment on that issue.
James v. Cox, 634 P.2d 964 (Ariz. App. 1981) - An Arizona court allowed testimony as to the dog's lack of aggravation or provocation around children, the theory being that this would be probative as to whether the dog was likely to be provoked. There was testimony in the case that the child hit the dog and the court held unintentional provocation was a defense. This was in a civil case, not a dangerous dog case, but the strict liablity of the civil statute was similar.
Canine behaviorist - Soraya V. Juarbe-Diaz - Oliver v. Clay County