What has been your experience using self defense expert witnesses?
What issues have you found most common in getting an expert admitted?
Self-defense expert witnesses can be crucial to your case. The state has the burden of disproving self defense beyond a reasonable doubt, and the self-defense expert can go a long way to making the state’s burden nearly impossible to meet. Because the state knows that an expert witness will make their case very difficult, they will often challenge the qualifications of the “expert” and ask the court to prevent the witness from testifying as an expert.
In Indiana, two requirements must be met for a witness to be qualified as an expert. First, the subject matter must be distinctly related to some scientific field, business, or profession beyond the knowledge of the average layperson, and second, the witness must be shown to have sufficient skill, knowledge, or experience in that area so that the opinion will aid the trier of fact (typically the jury).
The burden of establishing the qualifications of an expert witness is on the party offering to have the witness’ testimony admitted as expert witness testimony, and it is not the burden of the adversary to prove that the witness is not qualified as an expert. Whether a witness called as an expert is qualified to testify as an expert is a question for the court to consider and decide. The court’s decision in this regard will not be easy to overturn on appeal, so it is important to make sure your counsel is prepared to offer the expert witness. The court’s decision will only be overturned where there is a manifest abuse of discretion.
In order for someone to testify as an expert, the court has to agree that the person is an expert and is qualified to testify as an expert. So, establishing the individual’s qualifications will be crucial to getting the expert’s testimony in front of the jury. Oftentimes, the judge will hold a hearing either before trial or outside the presence of the jury to make a determination about whether the person being called as an expert has the qualifications to be held out to the jury as an expert. However, to the extent that it is possible, you will want the jury to hear the qualifications of the person testifying as an expert.
There are occasions where the state will know that your self-defense expert witness is undoubtedly an expert. In these instances, the state will not go through the trouble of challenging the qualifications of the expert but may try to stipulate to the expertise of the witness so that the jury does not hear the extent of the expertise. You, on the other hand, may want the jury to hear the expert’s qualifications so that the jury can determine how much weight to give to the expert’s testimony. The more qualifications and experience the expert has, the more weight the jury is likely to give to the expert’s testimony, thereby making the state’s case against you even more difficult.
Once the expert is admitted as an expert, your counsel will want to be sure to remain within the bounds of the witness’ expertise during questioning. Questions that are asked of the expert beyond the expert’s specialized knowledge will be subject to objection and will interrupt the crucial testimony from the expert. So, it is important to maintain focused questioning during the testimony of the expert. Preparing with the expert before trial goes a long way to making this process go smoothly.
In fact, the last time we used an expert at trial, we also had the opportunity to discuss the case with the jury after the verdict. The jury had returned a not guilty verdict, and each of the members of the jury indicated that they had made their decision about the verdict immediately after hearing from the defense expert. This demonstrates the degree of influence an expert can have on a jury.
Furthermore, an expert can often serve to educate the judge and the prosecutor. You might think that a judge and prosecutor would be well-versed in concepts related to self defense and the use of force. In our experience, prosecutors and judges are often unfamiliar with concepts related to the use of force, and an expert can go a long way to defeating misconceptions commonly held by judges and prosecutors.
The Armed Citizens’ Legal Defense Network provides great resources and education from experts, but if you are in need of an expert for your self-defense case, the Network can also serve as a great resource to help you get connected with the right expert for your case.
For additional information on this topic, be sure to check out Gila Hayes’ interview with Emanuel Kapelsohn: https://armedcitizensnetwork.org/the-role-of-the-expert-witness.
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, IN 47106
812-567-3848
This article was originally published on the Armed Citizens’ Legal Defense Network website:
https://armedcitizensnetwork.org/april-2022-attorney-question
