For this month’s Attorney Question of the Month, our Legal Services Director Art Joslin, who also does expert witness work, queried our affiliated attorneys about their experiences working with expert witnesses in self defense cases. We asked–
What has been your experience using self defense expert witnesses?
What issues have you found most common in getting an expert admitted?
Our affiliated attorneys shared the following–
John I. Harris III
Schulman, LeRoy & Bennett PC
3310 West End Avenue, Suite 460, Nashville, TN 37203
615-244-6670 Ext. 111
I have been involved in several cases, both civil and criminal, where the justifiable use of force was a relevant issue. In each, where I believe that an expert witness would provide strong testimony in support of justifiable use of force, I prefer to take advantage of that opportunity.
For example, in a use of force case that involved a private security officer who resorted to use of force and shot a third party, I was able to work with the professional training instructor who had regularly provided the use of force training for the officer that was involved in the shooting. The instructor could have been called in his capacity simply as a “fact witness” who had provided the training but it was important in that case to go far beyond that testimony and to introduce expert testimony on industry standards regarding standard operating procedures for both private security and law enforcement on how to recognize a developing threat, what to do along the force continuum, and when the threat elevates from the point justifying non-lethal force to the point justifying use of deadly force. I have experienced that this degree of expert testimony from a truly well-qualified expert is an important consideration for the jury to hear. Indeed, it helped in several of my cases that the individual giving such testimony had been a law enforcement officer who had resorted numerous times to use of deadly force and was found each time to have been justified in making that judgment call.
However, use of force experts are not the only category of expert that may be relevant. For example, I have used ballistics experts to talk about the projectile’s trajectory. I have used training experts to discuss safe and responsible training practices, weapon selection, ammo selection and even to address issues pertaining to how the individual holstered or carried the firearm. All of these are just some examples of where expert testimony tends to have more relevance to the jury and is typically seen as more persuasive that the defendant or the accused giving similar or even identical testimony.
There is an additional issue and that relates not to whether to use an expert but which experts to use. Frankly, there are some instructors or potential topical experts who simply are not good choices for expert witness testimony. It may be that they simply are not comfortable speaking in a courtroom. It may be that they are not a personality type that would handle appropriately an aggressive cross examination. It may be that their credentials are too thin in terms of where they got their training, what type of training it was, how diverse their own training has been, and how many third party certifications they hold. It may also be relevant as to whether their own teaching or instruction is limited to civilians or whether it has included law enforcement, private security or military courses. Just having an expert is not enough, it has to be the right expert.
Another problem I have encountered is not really an expert witness issue but it is a potential client issue. That has to do with individuals who see no value in regularly pursuing or obtaining professional instruction from qualified third party instructors. By qualified I am talking not only about that instructor’s own “résumé” of courses or experience that they have taken as a student but also whether that instructor would be a good trial court witness. The simple fact is that there are highly skilled individuals who simply are not “courtroom” quality in terms of their ability to communicate or withstand scrutiny.
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, IN 47106
Self-defense expert witnesses can be crucial to your case. The state has the burden of disproving self defense beyond a reasonable doubt, and the self-defense expert can go a long way to making the state’s burden nearly impossible to meet. Because the state knows that an expert witness will make their case very difficult, they will often challenge the qualifications of the “expert” and ask the court to prevent the witness from testifying as an expert.
In Indiana, two requirements must be met for a witness to be qualified as an expert. First, the subject matter must be distinctly related to some scientific field, business, or profession beyond the knowledge of the average layperson, and second, the witness must be shown to have sufficient skill, knowledge, or experience in that area so that the opinion will aid the trier of fact (typically the jury).
The burden of establishing the qualifications of an expert witness is on the party offering to have the witness’ testimony admitted as expert witness testimony, and it is not the burden of the adversary to prove that the witness is not qualified as an expert. Whether a witness called as an expert is qualified to testify as an expert is a question for the court to consider and decide. The court’s decision in this regard will not be easy to overturn on appeal, so it is important to make sure your counsel is prepared to offer the expert witness. The court’s decision will only be overturned where there is a manifest abuse of discretion.
In order for someone to testify as an expert, the court has to agree that the person is an expert and is qualified to testify as an expert. So, establishing the individual’s qualifications will be crucial to getting the expert’s testimony in front of the jury. Oftentimes, the judge will hold a hearing either before trial or outside the presence of the jury to make a determination about whether the person being called as an expert has the qualifications to be held out to the jury as an expert. However, to the extent that it is possible, you will want the jury to hear the qualifications of the person testifying as an expert.
There are occasions where the state will know that your self-defense expert witness is undoubtedly an expert. In these instances, the state will not go through the trouble of challenging the qualifications of the expert but may try to stipulate to the expertise of the witness so that the jury does not hear the extent of the expertise. You, on the other hand, may want the jury to hear the expert’s qualifications so that the jury can determine how much weight to give to the expert’s testimony. The more qualifications and experience the expert has, the more weight the jury is likely to give to the expert’s testimony, thereby making the state’s case against you even more difficult.
Once the expert is admitted as an expert, your counsel will want to be sure to remain within the bounds of the witness’ expertise during questioning. Questions that are asked of the expert beyond the expert’s specialized knowledge will be subject to objection and will interrupt the crucial testimony from the expert. So, it is important to maintain focused questioning during the testimony of the expert. Preparing with the expert before trial goes a long way to making this process go smoothly.
In fact, the last time we used an expert at trial, we also had the opportunity to discuss the case with the jury after the verdict. The jury had returned a not guilty verdict, and each of the members of the jury indicated that they had made their decision about the verdict immediately after hearing from the defense expert. This demonstrates the degree of influence an expert can have on a jury.
Furthermore, an expert can often serve to educate the judge and the prosecutor. You might think that a judge and prosecutor would be well-versed in concepts related to self defense and the use of force. In our experience, prosecutors and judges are often unfamiliar with concepts related to the use of force, and an expert can go a long way to defeating misconceptions commonly held by judges and prosecutors.
The Armed Citizens’ Legal Defense Network provides great resources and education from experts, but if you are in need of an expert for your self-defense case, the Network can also serve as a great resource to help you get connected with the right expert for your case.
For additional information on this topic, be sure to check out Gila Hayes’ interview with Emanuel Kapelsohn: https://armedcitizensnetwork.org/the-role-of-the-expert-witness.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
My experience with self-defense expert witnesses has been frustrating, especially in criminal cases. Many experts say they will not make a decision on whether to testify until after I send them discovery. I can’t even use an expert in those circumstances. In my state (Georgia) in a criminal case, the state does not have to provide discovery until 10 days before trial. It’s too late 10 days before trial to know if I even have an expert, let alone what his testimony will be. The implication of this approach is that the expert will only testify for the “right” case, which in turn implies that the expert has an agenda. In other disciplines, experts just take the facts supplied and offer professional opinions based on those facts. Taking only the “right” cases means the expert only will testify if he can opine a certain way – the facts have to fit the opinion he wants to give. I can’t really use an expert like that.
Getting an expert admitted in Georgia is a simple matter. While the test uses more flowery language, the bottom line is that anyone who knows more about a topic than the average person can get admitted as an expert. I have a friend who once had an elderly, uneducated and untrained woman who had raised several children and grandchildren admitted as an expert in diapers.
Thank you, affiliated attorneys, for sharing your experiences with expert witnesses. Members, please return next month for a new topic of discussion.
To read more of this month's journal, please click here.