Law enforcement expert witness testimony based on experience is not ipse dixit: US District Court, DC

People shooting gunA law enforcement expert witness is said to be qualified to testify in a case when he has some amount of specialized knowledge and/or experience in that particular field. However, such experience-based testimony cannot be rejected as ipse dixit or subjected to any Daubert Challenge on grounds of lack of reliable methodology, held the US District Court for the District of Columbia in a firearms case (Heller v. District of Columbia) on July 8, 2013.

Details of the case

The case involved Plaintiffs Dick Anthony Heller and others bringing a Second Amendment challenge to a long list of D.C. restrictions on gun ownership. After a series of lengthy proceedings, the Court of Appeals remanded the matter to the U.S. District Court for considering the constitutionality of certain provisions. Plaintiffs then moved to exclude testimonies of Defendants’ proposed experts – Mark D. Jones, Joseph J. Vince, Jr. and Cathy L. Lanier – the first two being former agents of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and the third the Chief of Police for the Metropolitan Police Department of the District of Columbia – on grounds that their expert reports fell short of the disclosure requirements under Fed.R.Civ.P. 26(a) and were too unreliable to be admitted under Daubert and Fed.R.Evid. 702.

What exactly are the requirements under Rule 26(a) ?

Rejecting the Plaintiffs’ contention that the expert reports were “devoid of facts or data considered by the witness’ in forming his opinions”, the Court held that while the reports may have been terse, they provided sufficient information to comply with the goals and requirements of Rule 26(a).

It may be noted in this context that Fed.R.Civ.P. 26(a)(2) requires that a “party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Disclosures must ordinarily be supplemented by a written report, prepared and signed by the witness, including the substance of the opinions the expert plans to offer and the facts and data he relies upon. For proposed experts who regularly provide expert testimony or have been specifically retained to do so, the report must also detail the witness’s qualifications, his past history as an expert, and his compensation.

In other words, “the purpose of Rule 26(a)(2) is to prevent unfair surprise at trial and to permit the opposing party to prepare rebuttal reports, to depose the expert in advance of trial, and to prepare for depositions and cross-examinations at trial.”

Can a law enforcement expert witness testimony be based solely on experience?

Plaintiffs next argued that the expert testimonies must be excluded under Rule 702 because none of the opinions was “the product of reliable principles and methods,” nor had the experts “applied the principles and methods reliably to the facts of the case,” their opinions instead being “nothing more than the expression of … personal legislative policy preferences or subjective conclusions.”

The Court disagreed, saying each of the experts here used the same methodology, one that has been deemed reliable and approved by courts in a variety of cases involving experts whose experience forms the basis of their opinions. In each case, the expert “observed the relevant evidence” and “applied their specialized knowledge” to the case at hand.

Identifying the main issue in this case as whether law enforcement officials can rely upon their specialized knowledge or experience to offer expert testimony, the Court held that the experts here knew gun trafficking and gun violence and sought to testify on the behavior of gun owners and users in response to certain gun-control policies. This case was a far cry from one where the opinion evidence was “connected to existing data only by the ipse dixit of the expert,” such that there was “simply too great an analytical gap between the data and the opinion proffered.”

The ruling

The Court found the proposed expert testimonies to be sufficiently reliable and allowed them in trial.

The Court also added that “while Plaintiffs may conceivably be correct that the expert testimony proffered here was not exactly the kind sought by the D.C. Circuit, a motion in limine was neither the time nor the place for those arguments. Essentially, the Plaintiffs had sought to cloak a motion for summary judgment in the form of a motion in limine. In doing so, they misconstrued the purpose of [such] a motion, which should not be used to resolve factual disputes among the parties.”

** Written for the web by the EWG Editorial Team

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