Martin A. Schwartz ()
Expert testimony is playing an increasingly significant role in 42 U.S.C. §1983 civil rights litigation. For example, police practices and use of force experts commonly testify in jury trials against law enforcement officers. Expert testimony can even be important in §1983 bench trials. In the highly publicized constitutional challenge to New York City’s stop and frisk practices recently tried before Judge Shira Scheindlin, each side was permitted to introduce expert testimony.1 The experts included a professor of criminology and a professor of public administration.
This column analyzes several recent federal court decisions concerning the admissibility of expert testimony likely to be of interest to §1983 litigators. The issues include: (1) expert testimony of police practices experts; (2) expert testimony relying upon aspirational standards; and (3) whether the testimony of a treating physician should be treated as a lay or expert witness testimony.
Some familiar background will facilitate an appreciation of the significance of these recent decisions. Fed.R.Evid. 701 governs the admissibility of lay witness opinion testimony. The rule requires the proponent to show that a lay witness’s opinion is (1) “rationally based on the witness’s perception”; (2) “helpful” to the trier of fact; and (3) “not based on scientific, technical, or other specialized knowledge” requiring an expert.
Fed.R.Evid. 702 governs the trial judge’s “gatekeeper function” for expert testimony. That rule requires, inter alia, that an expert witness have “scientific, technical, or other specialized knowledge,” and that her testimony “help the trier of fact.” Expert testimony need not necessarily be based on personal knowledge or even upon admissible evidence (Fed.R.Evid. 703), but it must be (1) “based on sufficient facts or data”; and (2) “the product of reliable principles and methods.” As a third factor, the expert must reliably apply the principles to the facts of the case (Fed.R.Evid. 702). When all is said and done, helpfulness is the key to admissibility. While helpfulness is a non-complex straightforward concept, prognosticating whether expert testimony will be helpful can be a dicey endeavor.
Police Practices Experts
In Jimenez v. City of Chicago,2 Thaddeus Jimenez alleged in his federal court §1983 complaint that he was wrongfully convicted for the murder of Eric Morro, and that his conviction was vacated only after spending 16 years in prison. He asserted violations of his Brady v. Maryland3 due process right to disclosure of exculpatory material and “malicious prosecution,” against the City of Chicago and Detective Jerome Bogucki.
At trial, plaintiff’s police practices expert Gregg McCrary “testified in some detail about reasonable practices for police investigations and how the investigation of the murder of Morro [in numerous and severe ways] departed from those practices, depending in large part on how the jury resolved conflicting evidence about the investigation.”4 In other words, “McCrary testified about the steps a reasonable police investigator would have taken to solve the Morro murder, as well as the information that a reasonable investigator would have taken into account as the investigation progressed.”5
The jury returned a verdict for plaintiff and awarded him $25 million in damages. On appeal defendants argued, inter alia, that the district court erred in allowing McCrary’s testimony regarding reasonable police practices because his testimony “was intertwined with probable cause” to prosecute, which is a legal standard.
The U.S. Court of Appeals for the Seventh Circuit found that defendants at trial failed to object to McCrary’s testimony on this basis, but that even if they had, their argument was without merit. Fed.R.Evid. 704(a) provides that opinion testimony “is not objectionable just because it embraces an ultimate issue” in the case. Nevertheless, under Rule 702 an expert’s opinion on an ultimate issue, like all other expert testimony, must be “helpful” to the trier of fact. The courts reconcile Rules 704(a) and 702 this way: An expert’s opinion on an ultimate issue of fact may be helpful, but an expert’s opinion on an ultimate question of law, like whether there was probable cause to prosecute, is not helpful because it essentially tells the jury which party should win the case. Expert opinions on ultimate legal issues may also intrude on the trial judge’s obligation to instruct the jury on the law.
The circuit court in Jimenez found that McCrary’s testimony did not offer an opinion on whether the police had probable cause to arrest Jimenez or whether there was probable cause to prosecute him for the Morro murder. He testified only about reasonable investigative procedures and how the defendants may have departed from them. And, while “McCrary’s opinion had direct implications for applying legal standards such as probable cause and…whether [Detective] Bogucki deliberately failed to comply with his” due process Brady obligations, it was those very implications which rendered his testimony relevant.6 McCrary properly limited his testimony to “describing sound professional standards and identifying departures from them.’”7
Significantly, the circuit court in Jimenez not only upheld the admission of McCrary’s testimony, but highlighted the importance of expert testimony on professional standards in constitutional tort cases:
In constitutional tort cases, expert testimony regarding sound professional standards governing a defendant’s actions can be relevant and helpful. Liability for constitutional torts is more limited in scope than common law tort liability. Negligence is not sufficient. Expert testimony regarding relevant professional standards can give the jury a baseline to help evaluate whether a defendant’s deviations from those standards were merely negligent or were so severe or persistent as to support an inference of intentional or reckless conduct that violated a plaintiff’s constitutional rights.8
Would the court have reached the same conclusion for expert testimony from a police practices expert on a Fourth Amendment excessive force claim against a police officer? Most courts, including the Seventh Circuit, have held that expert testimony as to whether an officer’s use of force was consistent with nationally prevailing or “sound” police practices is irrelevant to the Fourth Amendment Graham v. Connor9 issue of whether the officer’s use of force was objectively reasonable and, even if relevant, would confuse or mislead the jury.10
Similarly, courts have usually excluded evidence of state law and police department use of force policies.11
In the author’s view, these decisions are not well reasoned. Clearly, prevailing police practices, and state and police department policies, are not dispositive of the Fourth Amendment issue. Nevertheless, the jury, in determining whether the officer’s use of force was objectively reasonable, should be able to consider whether the force used was consistent with or violative of prevailing police practices or with state or police department policies. The trial judge can easily prevent any jury confusion by instructing the jury that this evidence is not dispositive of the Fourth Amendment issue. Hopefully, courts will be inspired by Jimenez to reconsider this issue in §1983 excessive force cases.
In Lees v. Carthage College,12 the Seventh Circuit was presented with an evidentiary issue similar to that in Jimenez, namely, whether an expert may testify on the basis of industry standards even if they are only aspirational. Lees is not a §1983 suit but the admissibility issue is one that could well arise in §1983 litigation.
Katherine Lees, a student at Carthage College, alleged that she was sexually assaulted in her dormitory room by two men she believed were Carthage students. Lees brought suit in federal court against the college, asserting that its security was negligent. She offered the expert testimony of Dr. Daniel Kennedy, a longtime professor of criminal justice and security administration, that there were numerous security deficiencies at the college and at Lees’ dormitory, and that the college “fell short of the recommended practices in the field of Campus security.”13 He relied upon standards published by the International Association of Campus Law Enforcement Administrators (IACLEA). The district court excluded this testimony partly on the ground that the IACLEA standards are only “aspirational.”
The Seventh Circuit reversed. The fact that Kennedy relied upon aspirational standards did not render his testimony unreliable. On the contrary, his reliance on the standards was methodologically sound because the “IACLEA guidelines are an authoritative set of recommended practices specific to the field of campus security and are regularly consulted by campus security professionals.”14 While the college was free to argue that the guidelines are only advisory, or outdated, or too general and for those reasons are not persuasive on the standard of care, the circuit court found that those arguments go to the weight of the expert testimony, not its admissibility.
The distinction between matters going to weight as opposed to admissibility of expert testimony at times requires fine-line drawing. The question is whether the expert’s testimony is sufficiently reliable to be helpful to the jury. If it is, the jury determines how much weight to give the testimony. In Lees, the circuit court had no trouble concluding that Kennedy’s testimony was sufficiently reliable for the jury to hear it.
Courts frequently have to determine whether a witness is testifying as a lay witness governed by Rule 701, or an expert witness governed primarily by Rule 702. One reason the distinction between lay and expert testimony is so important is that Fed.R.Civ.P. 26 imposes special disclosure requirements for expert witnesses. A witness not disclosed as an expert witness may still be permitted to testify as a fact witness, though not as an expert witness.
Consider, for example, a police officer who conducted a narcotics investigation. If the officer testifies about an investigation she conducted in the particular case, her testimony is very likely to be viewed as lay testimony.15 On the other hand, if the officer testifies on the basis of her general law enforcement experiences in investigating narcotics cases, her testimony will likely be considered expert testimony.16 A witness may testify as both a lay and expert witness, but we presently put aside the problems presented by these “dual witnesses.”
The lay versus expert testimony issue arises prominently in the context of the testimony of treating physicians. In Montoya v. Sheldon,17 the plaintiffs David and Michael Montoya, asserted, inter alia, §1983 Fourth Amendment false arrest, malicious prosecutions and excessive force claims.18 David Montoya sought damages for his psychological and physical injuries. He sought to present the testimony of his treating physician, Barbara Bath, but he had failed to identify her as an expert and she failed to file an expert report. U.S. District Judge James O. Browning (D.N.M.) provided a thorough and insightful analysis of when a treating physician may testify as a lay as opposed to expert witness.
Reviewing the federal precedents and legal scholarship, the court concluded that “[a] treating physician’s opinions regarding diagnosis of a medical condition is almost always expert testimony, because diagnosis requires judgment based on scientific, technical, or specialized knowledge in almost every case.”19 So, too, opinions about medical standards of care and causation are invariably the subject of expert testimony because they are beyond the realm of common experience and require special expertise. Such testimony, therefore, would not be the proper subject of lay opinion testimony.
On the other hand the court found that some diagnoses may be the proper subject of lay opinion testimony because they are within the realm of common experience. This determination, too, requires careful judicial line drawing. For example, while medical expertise is necessary to give an opinion on whether a person suffers from “depression,” because this is a complex medical matter beyond the realm of a lay person, a physician could give lay testimony whether a patient appeared “distressed” or “under psychological stress.”
A physician may also give a lay opinion on such mundane matters as whether a “person’s arm appeared red and puffy,”20 or that “‘plaintiff was coughing and running a fever,’”21 but an opinion that she was diagnosed as ‘”having Reactive Airways Dysfunction Syndrome caused by exposure to a toxic chemical’” is based on specialized knowledge “‘and must be qualified [as expert testimony] under Rule 702.’”22
The court in Montoya concluded that David Montoya’s treating physician could testify as a lay witness about any of plaintiff’s panic attacks she observed, but could not testify as a lay witness about “any diagnosis of [post traumatic stress disorder] or any other mental disorder,” or whether the defendant police officers’ “alleged unconstitutional conduct…caused D. Montoya’s panic attacks, because such testimony must be qualified as expert testimony under Rule 702.”23
Martin A. Schwartz is a professor at Touro Law Center and author of a treatise on Section 1983 litigation (Aspen Law Publishers).
1. See Floyd v. City of New York, 861 F.Supp.2d 274 (S.D.N.Y. 2012) and 959 F.Supp.2d 540 (S.D.N.Y. 2013).
2. 732 F.3d 710 (7th Cir. 2013).
3. 373 U.S. 83 (1963).
4. Jimenez, 732 F.3d at 719.
5. Id. at 722.
6. Id. at 721.
7. Id. (quoting West v. Waymire, 114 F.3d 646, 852 (7th Cir. 1997)).
8. Id. 721-22 (citations omitted).
9. 490 U.S. 386 (1989).
10. See Martin A. Schwartz, Section 1983 Litigation: Federal Evidence Ch. 1 (5th ed. 2014). See, e.g. Scott v. Edinburg, 346 F.3d 752, 760-62 (7th Cir. 2003).
11. See e.g. Thompson v. City of Chicago, 472 F.3d 444, 453-55 (7th Cir. 2006).
12. 714 F.3d 516 (7th Cir. 2013).
13. Id. at 518.
14. Id. at 525.
15. See e.g., Sanchez v. City of Chicago, 700 F.3d 919, 929 (7th Cir. 2012) (§1983 action) (Independent Police Review Authority Investigator Brian Killen “did not testify as an expert. His testimony was limited to what he was able to ascertain as a result of his own investigation into a particular allegation. Rather than opining based on a body of specialized knowledge and experience,…Killen simply reported that he found no evidence to support the allegations.”) (citations omitted).
16. Federal courts of appeals decisions in criminal cases commonly draw this distinction. See e.g., United States v. Miller, 738 F.3d 361, 371-72 (D.C. Cir. 2013).
17. 286 F.R.D. 602 (D.N.M. 2012).
18. For simplicity we limit our decision to plaintiff David Montoya.
19. Id. at 614 (citing James River Ins. v. Rapid Funding, 658 F.3d 1207, 1214 (10th Cir. 2011)).
20. Montoya, 286 F.R.D. at 615 n. 6 (citation omitted).
21. Id. at 619 (quoting 4 S. Saltzburg, M. Martin and D. Capra, Federal Rules of Evidence Manual §701.02 (9th ed. 2006)).
23. 286 F.R.D. at 620 (citations omitted).