News: “Counting on Testimony of That Great Expert Witness? Don’t!”

It’s been my experience that it’s common for folks to believe that if they’re involved in a use-of-force event and end up in court, that they can simply bring in a use-of-force expert witness to explain to the jury why their use of defensive force was legally reasonable. 

Tueller Drill? The expert witness will explain it. Auditory exclusion? The expert witness will explain it. Shots to the back? The expert witness will explain it. But will they?

I want to state up front that quality use-of-force expert witnesses can and do perform a tremendously valuable service for defendants facing legal jeopardy for a use of defensive force, so I’m certainly not suggesting anything negative about these experts or their testimony.

Counting on expert testimony, however, is foolish. Why? Because it’s not up to you whether your preferred expert witness will testify, even if you have the money to pay their often extremely high (and often worth every penny) fees. 

You don’t have an absolute right to have the legal expert of your choice, or even any legal expert at all, testify on your behalf at trial. That decision is going to be made at the sole discretion of the trial judge. You can also be sure that if your expert has any real prospect of helping your defense the prosecution will argue strenuously against their being permitted to testify.

At the most basic level, in order for your expert witness to be permitted to testify, at least two major check boxes must be ticked off.

First, the subject on which the expert is to testify must be relevant—that is, it must be both material and probative. Material meaning that it touches up on some facet of the legal arguments that matter, say an element of the criminal charge or an element of the legal defense raised against that charge. Probative meaning that it would be helpful to the finder of fact (usually the jury) in arriving at a decision, that it helps determine whether a claimed argument or fact is more or less likely to be true. 

Second, the expert must possess actual expertise to speak on that specific relevant issue with the authority that permits him to provide opinion evidence. Normal (non-expert) witnesses are not permitted to testify as to their opinions—they are permitted only to testify as to facts on which they possess personal knowledge. A qualified expert, on the other hand, is permitted to look at the facts, and then provide an opinion based on the application of his expertise to those facts. If the expert lacks the necessary expertise, however, his opinion is worth no more than that of any other witness, and therefore is not admissible

This topic came to mind in reading about the civil wrongful death trial currently taking place in North Carolina, involving a Reverend who shot and killed his son-in-law who was forcibly and unlawfully entering the Reverend’s home. You can learn more about the facts of this case and the current state of the trial by clicking here.

In this case the defense has sought to introduce testimony by a well known use-of-force expert witness, Emanuel Kapelsohn. To my knowledge, Kapelsohn is a fine expert witness. That, however, didn’t matter in this case.

Why? Because the judge declined to qualify Kapelsohn as an expert witness, on the grounds that he lacked the necessary expertise to provide opinions on the specific relevant issues in this case. 

As a result the defense didn’t get to have the jury hear their preferred expert witness, because the trial judge said no. And trial judge’s have, for all practical purposes, absolute discretion in making such decisions. 

Bottom line, if you can get a great expert witness to help bolster your legal defense, and you have the resources to afford the often considerable costs, that’s awesome, and something that should definitely be pursued if that’s what your legal counsel is recommending.

You must not, however, assume that your preferred expert witness will ever actually get to speak in front of the jury, however, because that decision is not yours to make but rather is solely up to the discretion of the trial judge.


Attorney Andrew F. Branca
Law of Self Defense LLC

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