A couple of months ago, the court of appeals decided State v. McDowell, __ N.C. App. __, 715 S.E.2d 602 (2011). The defendant was convicted of first-degree murder notwithstanding his claim of self-defense. A passage from the court’s opinion caught my eye:
Dave Cloutier, an expert in use-of-force science and self-defense tactics, testified that, given Defendant's account of the events that occurred at the time of the shooting, Defendant’s initial decision to use force against [the victim] was reasonable given the “pre-attack cues” that Defendant had received and applicable “use-of-force variables.” The factors that Mr. Cloutier deemed relevant included [the victim’s] decision to point a shotgun at Defendant, the fact that [the victim] threatened to kill Defendant, the fact that Defendant feared for his life, and the fact that Defendant needed to react quickly.
The expert’s testimony wasn’t an issue in the case, but I wasn’t very familiar with use of force experts and wondered whether the testimony described in the court’s opinion should have been admitted in the first place. After a bit of research, it appears that there are two basic concerns with testimony from use of force experts. (As an aside, if you’re wondering what makes a person an expert in the use of force, Cloutier’s CV is available on the IDS website here.) First, does the witness really possess “specialized knowledge [that] will assist the trier of fact,” as required by N.C. R. Evid. 702(a)? Second, does the witness’s testimony constitute an improper legal conclusion? As to the first issue, some use of force testimony strikes me as neither specialized nor especially helpful to the jury. For example, I doubt that most jurors need an expert to tell them that if A points a gun at B and threatens to shoot, B’s life in in danger. So unless there was more to the expert’s testimony in McDowell than described in the appellate opinion – which there may well have been, since, again, the expert’s testimony wasn’t the focus of the appeal – the testimony in McDowell likely could have been excluded. In other situations, though, an expert might well possess relevant specialized knowledge. For instance, in cases in which excessive force by an officer is alleged, “[c]ourts generally allow experts . . . to state an opinion on whether the conduct at issue fell below accepted standards in the field of law enforcement.” Zuchel v. City and County of Denver, 997 F.2d 730 (10th Cir. 1993). See also Jackson v. City of Pittsburgh, 2011 WL 3443951 (W.D. Pa. Aug. 8, 2011) (unpublished) (expert properly “explained the City of Pittsburgh’s Use of Force Policy and the Use of Force Continuum, among other applicable police procedures”). Another situation in which expert testimony might be admissible is exemplified by State v. Oakes, __ N.C. App. __, 703 S.E.2d 476 (2011). In Oakes, the defendant claimed that he shot the victim in self-defense, and sought to explain the fact that one of the bullets hit the victim in the back. He called a use of force expert who proposed to testify that “a person can turn his body 90 degrees faster than a person can pull a trigger once the decision has been made to pull the trigger.” That seems to be relevant and helpful information that most jurors might not know. (The trial court in Oakes excluded the testimony, and the reviewing court found any error not to be prejudicial in light of the fact that the defendant was also convicted of felony murder.) As to the second issue – whether use of force testimony constitutes an improper legal conclusion – the leading case seems to be Hygh v. Jacobs, 961 F.2d 359 (2nd Cir. 1992). Hygh is a civil case in which an arrestee sued the officer who arrested him for excessive force. (The officer allegedly struck the arrestee with a flashlight, breaking the arrestee’s cheekbone.) The plaintiff called a professor as an “expert witness concerning law enforcement,” and the professor testified, inter alia, that the officer’s use of force was not “justified under the circumstances,” not “warranted,” and was “totally improper.” The Second Circuit found the admission of the testimony to be error, because the testimony stated legal conclusions, i.e., simply told the jury what result to reach. See also Haflich v. McLeod, 2011 WL 65877 (D. Mont. Jan. 10, 2011) (unpublished) (excluding expert’s testimony that the defendant’s conduct was “punitive,” and citing Hygh). The brief statement in McDowell that the expert testified that the defendant’s “decision to use force against [the victim] was reasonable” similarly strikes me as improperly stating a legal conclusion. Cf. State v. Pollard, 2005 WL 1669034 (N.C. Ct. App. July 19, 2005) (unpublished) (excluding expert’s testimony because the defendant presented no evidence of self-defense; the defendant sought to have the expert testify to “the proportionality of the force defendant used”). So is expert use of force testimony admissible? I think it depends on the nature of the testimony, as discussed above. As always, if you think I’ve analyzed the issue incorrectly, or if you know of other significant cases in this area, feel free to weigh in.
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