NYLJ: Admissibility of Expert Testimony on Police Use of Force by Martin A. Schwartz:
Police practices experts can provide valuable testimony in §1983 excessive force cases. “Courts have permitted [these] experts to testify about discrete police practice issues when these experts are properly credentialed and their testimony assists the trier of fact.” Champion v. Outlook Nashville, 380 F. 3d 893, 908 (6th Cir. 2004). Police practices experts have been allowed to testify, for example, on the “continuum of force” (Champion v. Outlook Nashville; Kladis v. Brezek, 823 F. 2d 1014, 1019 (7th Cir. 1987)), how Tasers operate, and that a reasonable officer should know that “repeated and simultaneous Taser use poses a risk of serious injury or death” (Jones v. Las Vegas Metropolitan Police Dep’t, 873 F.3d 1123,1131(9th Cir. 2017)). The Seventh Circuit recently held that in some circumstances an expert may testify whether an officer complied with departmental policy or nationally prevailing police practices relating to use of force. United States v. Brown, 871 F.3d 532 (7th Cir. 2017). Brown is an important decision, and we will return to it after laying the necessary groundwork.
Over the years there has been much disagreement and uncertainty as to the type of testimony police practices experts may give. This is largely because, despite numerous Supreme Court decisions and an ongoing staggering volume of lower court excessive force cases, important Fourth Amendment excessive force issues still remain unresolved. These unresolved substantive issues impact admissibility determinations based on relevance. Fed. R. Evid. 403 and Fed. R. Evid. 702 (expert testimony).
I can’t resist: Watch this cross-examination from YouTube by my friend Randi McGinn:
Randi McGinn (of McGinn, Carpenter, Montoya & Love, P.A. in Albuquerque, New Mexico) was appointed Special Prosecutor for the State of New Mexico to bring charges against two Albuquerque Police officers involved in a fatal citizen shooting on March 16, 2014. This video clip relates to the expert hired by the defendants to present testimony at the Preliminary Hearing, which began August 3, 2015. The video clip includes Ms. McGinn’s voir dire of Bill Lewinski (challenge to his credentials), argument on the State’s motion to exclude/limit the testimony of Bill Lewinski, and a short cross examination. The Court ruled to exclude much of the testimony that had been proffered.