Criminal Procedure Expert WitnessesA man was shot and killed when a U.S. Marshal attempted to arrest him at a house in Detroit in 2015. The man’s estate and his relatives filed this action, asserting multiple claims against several Defendants. In the end, there was only one remaining claim in the case— the Estate’s excessive force claim against the federal agent 

The Estate wanted to have its criminal procedure expert testify as an expert witness at trial. Pursuant to Rule 26(a)(2)(B), the Estate provided Defendant Agent with a written reportIn this motion, Defendant Agent sought to exclude several opinions of the Estate’s expert pursuant to Federal Rules of Evidence 401, 403, and 702. 

U.S. District Judge Sean F. Cox wrote in his opinion, relying on Sixth Circuit decision, that stated, Under Rule 26(a), a ‘report must be complete such that opposing counsel is not forced to depose an expert in order to avoid an ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.” Judge Cox went on to note that the decisions held that such expert reports must include how and why the expert witness reached a particular opinion, “not merely the experts’ conclusory opinions. 

Here, the criminal procedure expert‘s report included his curriculum vitae and a list of prior cases in which hed previously provided testimony. The part of Plaintiff’s criminal procedure expert‘s report of significance here starts by listing the materials that he considered, including Defendant Agent‘s statement and the autopsy report.  

The report contained a section titled “Qualifications for Opinion” in which he discusses his background and experience. Second, it contained a section titled “Information” wherein Plaintiff’s criminal procedure expert summarized the versions of events as reflected in the Agent‘s statement and police reports. Third, the report contained a section titled “Comments and Observations.” Finally, Plaintiff’s criminal procedure expert‘s report contained a section titled “Opinions and Conclusions.” 

The Agent‘s motion to exclude the opinions of Plaintiff’s expert divided the opinions in the report into three categories: 1) alleged opinions “on forensic pathology2) criticisms concerning the scope and thoroughness of the investigation following the shooting; and 3) opinions as to bullet trajectories and blood spatter analysis. 

There were no claims concerning the adequacy of the post-shooting investigation remaining in the case and the Agent played no role in conducting that investigation. Judge Cox held that any opinions on the scope or thoroughness of the investigation that occurred after the shooting were irrelevant to the issue of whether the Agent used excessive force when he shot the Decedent. These opinions were excluded under Rule 401. 

The Agent‘s motion asserted that in his report Plaintiff’s expert offered several opinions on the path of the bullets through the victim’s body. The Agent asserted that these opinions should be excluded in their entirety as unreliable because the expert had no training, education, or experience to qualify him in forensic pathology. 

While the Estate’s response didn’t argue this, Judge Cox didn’t believe the expert‘s report was offering any opinions by him as to forensic pathology. The expert wasn’t offering any of his own opinions as to the path of the bullets through the Decedent’s body. Rather, he appeared to offer his opinion that the account of how the shooting occurred given by the Agent (that the Agent shot the Decedent while the Agent was retreating and the Decedent fell towards him with his face towards the floor) wasn’t consistent with the crime scene evidence. In support of that opinion, the expert noted, as the facts considered by him that support that opinion, the statements in the autopsy report (that was authored by a forensic pathologist) as to the path the four bullets took through the Decedent’s body. 

As the criminal procedure expert wasn’t seeking to offer any of his own opinions as to the paths the bullets took through the Decedent’s body, it appeared unnecessary for the judge to exclude any such “expert opinions.” 

The final category of Plaintiff’s criminal procedure expert‘s opinions related to the crime scene. Defendant Agent‘s motion asserted that the expert‘s opinions about the crime scene should be limited to those expressly stated in his report 

Judge Cox found that this was placing form over substance. The expert‘s report opined that the Agent‘s version of how the shooting occurred was inconsistent with the crime scene evidence. Although the second bullet point in his report was phrased as a question, and also inferred the investigation was inadequate, the judge believed it also gave Defense counsel notice that Plaintiff’s expert believed that the Agent‘s account of how the shooting occurred was inconsistent with the crime scene evidence because there wouldn’t have been fired cartridges in other areas of the house if it occurred as the Agent said it did. 

The judge said iwas similarly apparent from the expert’s report was of the opinion that the blood spatters are inconsistent with the Agent‘s version of how the shooting occurred. (“The blood spatter patterns observed on the walls were not explained with the story of how the shooting took place.”). Judge Coxagreed with the Agent, however, that the report didn’t explain, in any way, even in the form of a question, why or how the blood patterns were inconsistent with the Agent‘s version of how the shooting occurred. As such, the judge concluded that Plaintiff’s criminal procedure expert should be precluded from offering that opinion at trial or explaining the relevance of the blood spatter patterns that were found at the scene. 

Further, Judge Cox held that the adequacy of the state and federal criminal investigations that happened after the shooting, and the conclusions reached in those investigations, were not relevant as to the sole excessive force claim that was proceeding to trial. 

The Agent‘s Motion To Exclude Opinions of Plaintiff’s criminal procedure expert was granted in part and denied in part. The motion was granted to the extent that: 1) Plaintiff’s expert couldn’t offer any opinions regarding the scope or thoroughness of the criminal investigations of the shooting: and 2) the expert was prohibited from offering opinions as to the blood spatters. The motion was denied to the extent that the expert was permitted to offer opinions, as set forth in his report, that the Agent‘s account of how the shooting occurred was inconsistent with the crime scene evidence because of the location of the fired cartridges.