The Role of the Expert Witness
An Interview with Emanuel Kapelsohn
Interview by Gila Hayes
Network members and potential members often ask if they join, won’t that mean they can have our Advisory Board on their trial team as expert witnesses. We have to answer that it is a little more complicated than that.
Giving testimony in court may or may not be allowed due to various factors. In addition to 30+ years practicing law and 36 years as a defensive firearms trainer, Network Advisory Board member Emanuel Kapelsohn has frequently given expert testimony about use of force and firearms issues. He well knows the challenges faced by an expert witness.
Let’s switch now to our Q & A format and ask him to educate us about the role of the expert in trial law.
eJournal: Thank you for agreeing to teach us about expert witnesses. What makes an expert?
Kapelsohn: Under either federal law or state law, an expert witness is someone who is qualified by virtue of their training, experience or their education to offer opinions in court about things that lay witnesses would not be permitted to offer opinions on. Those things we call expert opinions. So an expert witness doesn’t necessarily have to have a university degree; they don’t necessarily have to have a certificate that says they are trained in a specific thing.
The example I often give is about Joe Shmorph, who has been a ditch digger all of his life and he is an expert on ditch digging. He only got to eighth grade in school, but he has dug ditches with a pick and shovel, he has dug ditches with a Ditch Witch, and he has dug ditches with backhoes. He has been a foreman in charge of a crew of eight guys digging ditches. He has dug ditches that have to be supported by ditching boxes that support the sidewalls of the ditch. He has dug ditches in sand and loam and in clay, and he’s dug ditches where you have to blast out the rock for the ditches. He is a ditch expert.
Now, in order for someone to testify as an expert in court, the court has to agree that that person is an expert. The court is the gatekeeper of that kind of testimony. When the court agrees that you are an expert, it is called “qualifying” you. The court has to qualify you as an expert.
In this case, Joe Shmorph is put on the stand by the party that wants him to testify as an expert and that party will ask him all kinds of questions about his experiences, about his lifetime of ditch digging, and about all the kinds of ditches he has dug with all the kinds of equipment and all the stuff he knows.
It does not matter at all if Joe Shmorph has never testified in court before. It is not necessary because everybody is an expert for the first time sometime or other. It is a help if he has; it helps if we can say, “Judge, Mr. Shmorph has testified and been qualified as an expert before the Federal District Court in Omaha…” and then the judge knows he is not going out on a limb.
After the lawyer who is the proponent of Mr. Shmorph’s testimony gets done asking him those questions, the judge will ask the opposing attorney if he wants to voir dire the expert. That is the opponent’s chance to ask Mr. Shmorph questions to get at whether he really is an expert or not, if he has a personal interest in this case, how much he is being paid for his testimony, and things of that sort.
Sometimes the other side knows that Mr. Shmorph is going to be qualified by the court. Clearly, he is an expert: if there is anyone in the world who knows about digging ditches, it is Mr. Shmorph. Then the opposing attorney may interrupt, “Your Honor, this is not necessary. We are willing to stipulate that Mr. Shmorph is an expert on ditch digging.” You never want to agree to that!
The jury needs to hear all of what Mr. Shmorph has done, digging ditches his whole life. That is because Mr. Shmorph is going to give opinions in this case and the other side is certainly going to bring in experts who will give opposing opinions. You want the jury to be able to make their own determination. Do they believe Mr. Shmorph or do they believe this guy with the university degree in engineering who’s never actually dug a ditch in his life but who has written three textbooks about construction and landfill and so forth? Who is the jury going to believe? I want the jury to hear everything Mr. Shmorph has done.
When the judge has qualified Mr. Shmorph as an expert, Mr. Shmorph is then permitted to give opinions on certain subjects. A normal person can’t give an opinion. If you were an eyewitness to an accident, and were asked, “Do you think this guy was driving too fast? Do you think he was driving recklessly?” you are not going to be able to give that opinion! It is for the jury to decide if that was reckless or not. Whether or not he was driving too fast is for radar to determine or for an experienced police office to say, “Based on my training and years of experience, I can tell you that guy was going more than 70 miles an hour,” or for someone to say “I followed him in my police car, and at 70 miles an hour he was outdistancing me, so I know…” It is not for you to say, “I think he was going too fast.”
There are certain things that a court will typically let a lay witness–meaning an eyewitness–give opinions about: whether someone appeared to be intoxicated, whether someone appeared to be angry, whether someone was happy because they were smiling and laughing and jumping up and down, because those are things we all make judgments about in our every day life.
Other than that, witnesses are allowed to testify to things they know for a fact. They are fact witnesses: something they said, something they heard, something they touched, something they did or saw someone else do. That is what they are allowed to testify about–facts. You have to be an expert to give an opinion.
eJournal: Aren’t there also limits or restrictions on opinions to which an expert can testify at trial?
Kapelsohn: Courts are increasingly on guard against letting experts testify about what we call “junk science.” There are a number of federal court cases talking about the kind of scrutiny judges should exercise in deciding whether to let an expert testify about a certain subject or not.
One leading case is called Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and often in advance of trial the two opposing attorneys and the judge will have a Daubert hearing about the expert’s proposed testimony. The judge will hear the qualification questions and the judge will hear the voir dire from the opposing attorney and then the judge will hear the kind of expert testimony that the lawyer intends to bring out through this expert.
A judge might ask if what the expert is going to testify about is something that has been professionally accepted in his field of expertise. For example, can we talk about the actual stopping power of certain ammunition? Can we talk about the fact that after being shot many people don’t stop immediately but are still capable of fighting, running or driving a car? That may be allowed if the expert is someone who has many years of experience studying that, or personal experience with it, or as a police trainer.
But if the expert is going to testify about the “hydrostatic shock” effect of a certain caliber of ammunition, what scientific basis is there for showing that that effect exists at all, let alone with this kind of ammunition? Or to show that shooting someone with buckshot produces “sensory overload” because the person is hit in several parts in their body at the same time and “it is more than their nervous system can handle?” This is stuff we read about in gun magazines all the time, but if you try to find any kind of scientific basis for it, often we can’t come up with any. Some gun writer’s imagination created that idea and he thought, “It sounds good,” but the judge may say, “Well, I don’t see any scientific basis for it.”
Another aspect of hearings about whether a certain opinion will be admissible or not is whether it has been published in articles that are peer reviewed: reviewed by other experts in the field who agree that it has sound methodology to it. If I am going to do a certain kind of timing of someone’s reaction time or ability to fire multiple shots in a certain time frame, I am going to come in and say, “Here is how I am doing it. I am using this kind of electronic timer and I am timing it this way, and this has been used in these scientific studies, ” and so forth. That may make it in, but ultimately, it is up to the judge.
I testified in a case in federal court in Oregon where a federal judge said she wouldn’t allow my testimony about the amount of time it takes to disengage the safety and fire a shot from an AR-15 rifle, or the possible shot to shot times to be admitted because they were timed with an electronic timer. I was saying to myself, “Well, if she doesn’t like it because it was timed with an electronic timer, how would she want it to be timed? With a sundial? With a stopwatch which is much less accurate and involves much more human error than something that hears the shots through a microphone and records them electronically?”
Now, that same judge also would not let the rifle come into court: the rifle that was the basis for why the police officer shot and killed this person. She wouldn’t let the jury see how the safety was clicked on and off and how the trigger was pulled. I think she just was gun phobic. Luckily, she was willing to allow a blue gun, an exactly molded plastic copy of an AR-15 rifle, into court. I was at least allowed to move it quickly and point it at the jury and show them how quickly it could have been pointed at the officer involved, but she would not let the actual rifle be shown to the jury.
These things are often a matter of an individual judge’s determination. You might succeed in getting it overturned on appeal, but that takes years and dollars to do.
eJournal: While the Network can fund appeals for members, we would certainly prefer to avoid that necessity by funding the best possible team to defend in the initial trial. Does a defense attorney generally recognize aspects of the case that require expert witnesses testimony, and then does he or she know how to find good experts and use them effectively?
Kapelsohn: That is a real rough question and an important question! I’ve worked in cases where the expert on the other side from me was someone I could walk all over because they really didn’t have much expertise. Their credentials weren’t very good; their knowledge base wasn’t very good and they put out theories that were not supportable.
The opposing expert that the plaintiff brought in on the Oregon case I just mentioned was an example. That case involved an officer responding to a domestic, who wound up shooting and killing the husband who reached down and came up with an AR-15 rifle. The officer was yelling, “Drop it! Drop it!” and the husband wouldn’t. The officer tried to wrestle it away from him, to tase the husband and eventually had to shoot the husband. (The plaintiff is the estate, the widow of the slain husband who was divorcing him and had said he was a creep. Now that he was dead, he was the finest husband and father in the world and he was on the road to straightening himself out. She was in the process of moving out and taking the child with her. That was what prompted this event.)
In that case, the opposing expert said that once the officer had his gun out and pointed at the husband who was holding an AR-15 in his hands, that the officer had no reason to shoot the husband. He said the officer completely overreacted because once he had his handgun pointed at this man, he had “The drop on him.” I have not heard that in 30 years! He said, “He had the drop on him: the crown jewel of police tactics.” That was so absurd, I’ll say it again, “The crown jewel of police tactics.”
There is a lawyer that hired that expert, and because it was a civil suit, millions and millions of dollars depended on it. There was an expert who came in and proposed a theory that was absolute malarkey! We all can prove that action is faster than reaction, and that by the time the officer could put his finger on the trigger and pull it, the husband could have pointed the AR-15 and fired it. I made a video showing that. The judge was willing to let the jury see that video.
Now, in a case for an Armed Citizens’ Legal Defense Network member, someone’s freedom could depend on it. Whether someone goes to jail or not, whether someone is convicted of murder and executed or not, might depend on how good an expert your attorney picks.
There are situations where the attorney does not think or even know he needs an expert. I have had defendants contact me and say, “I’m on trial here in IA or KS or wherever it is and my attorney says I don’t need an expert. He says he’s been in practice for 25 years and he has never used an expert.” I’ll listen and then I’ll say, “How is he going to prove this, this and the other thing without an expert?” and they’ll say, “Well, I don’t know.”
I’ll say, “I am happy to talk to your attorney if you want me to. I’m not trying for the job, I have lots of work, but if he does not think he needs an expert on that subject, I’d like to talk to him because I think he really should reconsider that issue.”
This is critical! Our members have to know that they may very well need one or more experts to help prove their case. A good lawyer needs other people on his team to do the job.
eJournal: Do attorneys often resist the advice and services of experts?
Kapelsohn: Sometimes they do. Close to where I live in PA, a security officer who was a night club bouncer working at the door deciding who to let in and who not to let in, got involved in a confrontation with someone whom the officer believed was reaching under his jacket for a weapon. There was some basis for his belief. The person he shot and killed was a rapper who had made rap songs talking about killing the police, and on this occasion he had used very volatile language.
I saw in the newspapers that the security officer had shot and killed this man after they were involved in an argument and struggle with each other. About a year later, I read a newspaper article about how this case had been on trial for a week and in a day was going to go to the jury.
The article talked about how a major piece of evidence used in prosecuting the security officer for murder was that the officer said, “I shot him when he was facing me,” and the shot went into the suspect’s side, not the front. I tried to get the lawyer on the phone and I called the employer of the security officer. I finally got the lawyer on the phone and said, “This is an area of expert testimony. There are articles called things like, Why Is The Suspect Shot in the Back? There are timing tests for how fast a person can rotate vs. the amount of time it takes someone to react and pull the trigger.
“Have you used an expert witness?” I asked the lawyer. He said, “Oh, no, I didn’t think I needed one and I don’t think my client could afford one anyway.”
I said, “He’s looking at life in prison for this. From what I read in the paper, it sounds like this was a key issue.”
“Well, it’s too late now, anyhow,” he said. “The case is going to the jury tomorrow morning.”
Here someone’s life and freedom depended on this issue and maybe if the lawyer had called me or another expert, one of us would have said, “I know your client doesn’t have much money; I’ll agree to do it for less,” or maybe the client’s family would have come up with the money.
The point is the lawyer put on a defense that might not have been as strong as it could have been. It is very important to get a lawyer who understands that he may need experts in certain areas and he may need more than one expert.
eJournal: I’ve been saying for years that with the growth of the Network’s Legal Defense Fund, we are positioned to pay several attorneys to defend a member, and that could include a specialist to work with the local lawyer, something you spoke of in an earlier interview. The second attorney would be hired because of experience defending parallel cases, and now your comments show that he or she might know the right experts to address aspects needing expert testimony.
Kapelsohn: It has many times happened to me that a lawyer will call and say, “We need an expert on subject A,” and I say, “Tell me what your case is about, what happened?” They will give me a quick run down on the case, and I’ll say, “Who is covering subjects B, C and D?” That is why they call us experts. We may know what the lawyer needs, when the lawyer doesn’t realize he or she needs it.
They may think they need an expert on defense against knives, when they may also need an expert on why this homeowner needed to shoot the person six times before the person fell down, or a shooting scene reconstruction expert to show the angles of the shots and show that maybe they were all fired while the person was still up and coming toward the homeowner instead of when the person was already lying on the ground. The lawyer may say, “I never thought about that,” and I’ll say, “Once I start getting into the case file, I may tell you four or five other things that you never thought about.”
There are cases where I’m working as a use of force expert or a shooting scene reconstruction expert or a ballistics expert and I will say to the lawyer, “By the way, there is very, very interesting and potentially very important blood evidence in this case. You need a blood spatter expert. I’m not one, but here are some guys you should call and hire one of them to come look at this evidence,” or someone may need DNA evidence or a fingerprint person or a psychologist.
Sometimes, I’ve gotten into situations where it is the eleventh hour, maybe it is the night before I am going to testify or maybe two days before, and a lawyer who is not very good will call me and say, “Oh, by the way, I want you to look back at some crime scene photos of the blood spatter.” I’d say, “Well, I can do that, but why?”
“Well, I’d like you to testify…” they say. I say, “Whoa, whoa, whoa! I never told you I’m a blood spatter expert. I’m not! I know a lot about blood spatter because I’ve been working in this field for 35 years. I’ve been at a lot of crime scenes; I’ve looked at a lot of evidence; I’ve looked at a lot of autopsies; I’ve looked at a lot of crime scene photos. But I don’t hold myself out as a blood spatter expert. I don’t have the specialized training to be able to testify to that subject, although I may know something about it.”
There are deadlines by which the court wants lawyers to announce what experts they are going to use. The other side has a right to know the experts you are going to be using, typically to have a report from the experts so they know what the experts are going to say so they can prepare for it with their own witnesses. So a lawyer may say, “Well, it is too late for me to get a blood spatter expert; I’m past the deadline to announce who my experts are.” It’s too bad the lawyer missed his deadline, but that still doesn’t make me a blood spatter expert!
An expert hired early in the case may be able to educate and inform the attorney to the fact that he needs other experts as well. Not just one. And often experts are not cheap. I do a number of cases on a reduced rate for public defenders offices and so forth, but I can only do a few a year that way, because I am supporting a family in part on that work, and partly on my income from training people to use guns, or as a consultant, so I can’t afford to work on a charitable basis too often. In general, experts are expensive and may have to be a major part of the case budget.
(1) See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)
Editor’s note: This marks an approximate halfway point in a lengthy discussion about expert witness work. With Kapelsohn just starting to discuss the timelines in preparing for trial, it is a good place to take a break. We encourage readers to return next month for the conclusion of this informative interview.
Attorney and Network Advisory Board member Emanuel Kapelsohn practices trial law in addition to his work as a firearms consultant/expert and author. He holds degrees from Yale University (with honors) and Harvard Law School, and has, since 1980, instructed thousands of police and security officers, federal agents, military personnel and private citizens throughout the U.S. and abroad. He consults and provides expert testimony in both civil and criminal cases involving firearms and use of force and has testified in state and federal courts, and by invitation before both houses of Congress. Learn more about him at http://www.peregrinecorporation.com and http://www.lesavoybutz.com/emanuel-kapelsohn/.
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