An expert in a specific force discipline
National credentials, state certification or ertified manufacturer's training is probably going to be needed before a court...
Testifying experts help juries understand and make sense of complicated law enforcement issues.
FEATURED IN INVESTIGATION
Hey, it's my anniversary! Twenty years ago, in 1989, I served as an expert witness in my first case: A murder case in Ann Arbor, Mich., in which a paraplegic was threatened by his drunken roommate. The would-be defendant locked himself in his room, armed himself with a handgun and backed his wheelchair up against his wall. Verbal warnings didn t discourage the roommate. The violent roomie and eventual DOA kept pounding and kicking on the door until it gave way. According to the defendant, his first couple of shots missed, but that didn t stop the drunken assailant. The next three found their mark. An overaggressive district attorney filed open murder charges against the paraplegic. It seems firing your gun dry while being threatened by an unarmed drunk doesn t sit well in Washtenaw County, Mich. even if you re a paraplegic with your back up against a wall and the 9-1-1 system is working a little slow that day.
I got the call from the shooter s defense attorney. I was a little conflicted about taking the case.Two reasons: First, criminal defense attorneys aren t high on my hit parade. I rank them just above used car salesmen on the ethics and honesty scale. Second, I was still an active-duty lieutenant and the job wasn t too thrilled about my services being offered to help acquit a civilian murder suspect.
This was my captain's pearl of wisdom: If the local cops arrested this mutt, he must be guilty paraplegic or not. But you can go wherever you want on your vacation. Needless to say, a subpoena from Michigan wasn t going to get me any comped court time, so unless the trial fell on my regular days off, it was going to cost me lost time or vacation days.
I, too, was having second thoughts. Since starting with Calibre Press Inc. in 1988, I d been called at least a half-dozen times by police defense attorneys to review use-of-force cases. Most never went to trial or even deposition. But this case wasn t going to settle out. The defendant wasn t even offered a plea down to a lesser charge, and his attorney was taking it to trial, expert or not. The turning point came when I got a call from the local sheriff s deputy who d given the criminal defense attorney my name and who d attended a Street Survival Seminar I d taught the year before in Detroit. He filled me in on the details of the case, exactly how the indictment came down and the background on the aggressive new district attorney. I called the attorney back. Send me the file, I told him.
Here s the Reader s Digest version: The paraplegic did dial 9-1-1. His verbal warnings/pleas didn t work. He locked his door. He told the drunken roomie that he had a gun. He backed his wheelchair up against a wall. He had no room to retreat, no use of his legs, limited use of his arms and barely enough strength to pull the trigger on his snub nose .38. What would any reasonable person do? After visiting the scene with the attorney prior to the beginning of the trial, I suggested a jury view the room and hallway.Small and confined didn t do this shooting scene justice. In the end, the jury agreed with my assessment and the defense s position of self-defense.
That case and trial started me on my second career as a litigation consultant. Although I limit my work to only civil and criminal police cases domestically and abroad, that experience 20 years ago gave me a whole new insight into the criminal and civil justice system that, as a cop, I'd never known existed. I was used to testifying as a fact witness before the grand jury or in preliminary hearings or trials. The world of the expert witness dealing in hypotheticals and rendering opinions was extremely new to me.
If you re facing a lawsuit or if you re a trainer thinking of getting into the expert witness field, you must understand the role of the expert witness.
What Do Testifying Experts Do?
Some police professionals work strictly as consulting experts. They never see a courtroom. For whatever reasons, they choose to remain behind the scenes. But testifying experts talk the talk and walk the walk. In addition to reviewing cases, they help juries understand and make sense of complicated law enforcement issues.
Most civilians get their knowledge of police procedures from watchingThe Shield, Law and Order or NYPD Blue. Because of my background, the bulk of my work is in use-of-force issues. I occasionally testify in internal affairs matters, narcotics investigations, raid planning and tactics, as well as pursuits. I cover force policy and procedures, control/force continuums, officer/subject factors, and special circumstances and objective reasonableness. In use-of-force cases, usually the plaintiff and the defense will retain separate force experts, but for all intents and purposes, we are the court s expert. The judge gets to decide if the expert is qualified based on their training, education and experience to render an opinion and the focus of their testimony.
If someone were to profile a force expert, what you d get is a degreed, retired or former police professional, most likely with some progressively achieved command rank, legitimate credentials and some teaching experience. Retired means honorably retired, not asked to leave before your 20 years.Formermeans more than six months on the job. Teaching experience means teaching at a certified academy or recognized training organization. And published works are not self-published articles or books.
Degreed generally means a four-year degree from an accredited college or university in something related to law enforcement, such as criminal justice, police administration or criminology. Finally, command rank means something higher than senior patrolman or corporal. That s not to minimize street time in the bag, but juries look at steady promotions as a mark of credibility.
I've been opposite experts who actually went down in rank before they retired. Not the usual progression in most law enforcement agencies. I've also seen officers who hold doctorate degrees with six months experience on the job as reserve or auxiliary officers.
In one of my last trials, I was opposite a plaintiff s expert, a retired police chief. He was the chief in three or four mid- to large-size municipal agencies before retiring, but I think his last real arrest came during the Eisenhower administration. To bolster his street cred, he testified under oath that he had two different uniforms in his closet: a chief s shirt with stars on the collar and all the gold accoutrements on his sleeve; and a patrolman s uniform with no brass but a silver officer s badge. He said he d go out in this uniform and actually make arrests. But when questioned on the details of one of his last arrests and whether or not his name would appear on the booking sheet if it were subpoenaed he said he gave the collar to another responding officer because he didn t want to testify in court. Making arrests is one thing; testifying in court is another is how I remember the testimony going. Can you say, defense verdict?
Published works means authoritative writings that appear in either a peer-reviewed journal or a credible, legitimate law enforcement publication, such as Law Officer. A close look at one often-used plaintiff s expert s r sum revealed double-digit authored articles all self-published. Another just had the words training manual under published works, with no dates, issue numbers or publication names.
Credentialed trainer:Being ordained or anointed by the chief or sheriff as the department force trainer or firearms instructor doesn t make you a trainer in anybody s eyes except the chief s or sheriff s. Some of the most embarrassing moments I ve seen happen to opposing experts on the stand (or read about during their depositions) have been when they ve fudged being legitimate force trainers. Going through a user class in expandable baton doesn t make you a trainer or an expert on impact weapons. Being pepper sprayed or tased by a buddy doesn't qualify you as an instructor or an expert in OC or electronic control devices. National credentials (FBI, NRA, etc.), state certification (through your POST board) or, at the very least, certified manufacturer s training is probably going to be needed before a court will accept you as an expert in a specific force discipline.
Another danger comes from a lack of work experience. If you re going to venture into a certain area, like IA or narc issues, you re most likely going to need some time in that unit before a court will permit you to offer an expert opinion. I've seen some exceptions at the trial court level, but I've also seen those trials overturned at appeal.
Lastly,teaching experience means just that. I was up against another expert who claimed to have taught a use-of-force class for a large, nationally recognized police training organization. I checked his r sum . The closest he had come to teaching for this organization was to introduce the actual instructor during a visit to his department, not even during a real class. He also boasted about teaching at an international training conference of another law enforcement training organization. In reality, he was a nonlisted, volunteer assistant to the trainer. Not all experts are experts.
Retention of an Expert
The actual selection process for a force expert usually rests in the hands of the attorney. Some firms use one expert frequently. Others use several. But you can and should play a role in the selection process. If you re the defendant, insist on playing a role in the vetting process of your expert. You probably know more about the legitimacy of the credentials your expert boasts (and needs) than your attorney does. If you're facing an excessive force beef from OC and handcuffing, but your force expert is a retired police chief who came up through Planning and Research, he may not be the best expert for your case. Likewise, if you re a corrections officer being sued for an incident in the jail, you re going to want an expert who knows about jail policy and who has actually worked as a CO.
Although expertise should be a factor, location should not. I live in southwest Florida, but I'm consulting on a case from Maui, Hawaii. Recently, I spent 14 hours flying up to Kenai, Alaska, changing planes three times, to testify in a handcuffing case for an Alaska state trooper and another 14 hours on the return flight. Sure, the case meant a long couple of days for me, but I'm sure it was an even longer time period for the trooper while he was waiting for the jury, which eventually exonerated him, to come back with its verdict. Credentials and experience, not geography, should be the deciding factor in choosing the expert.
If you're a credentialed trainer thinking of venturing into that low-stress and highly lucrative (yeah, right) field of expert witnessing, I hope this piece helped you out. If you re on the job and facing litigation, I hope it motivates you to take an active role in hiring or retaining an expert on your behalf. An expert saying he's been retained in 1,000 cases, doesn t make it so. That's a claim that doesn t have to be supported in court. But testimony does. Under the Federal Rules of Civil Procedure, Rule 26, experts have to list all cases they ve testified in, either at deposition or in trial, within the past four years, and they must provide dates, names and case numbers, as well as court venues.
Ensure your attorney checks your expert out and vets them to your satisfaction. Get involved. In some cases, careers, as well as money, might be on the line and it won t be your lawyer's.
Dave Grossi is a retired police lieutenant from upstate New York, now residing in southwest Florida. A member of the Force Science Research Center s National Advisory Board and a certified trainer in virtually all force disciplines, he testifies frequently in use-of-force cases.