Lay Testimony From A Witness Who Might Be An Expert

In a § 1983 excessive force trial, admitting an Independent Police Review Authority (IPRA) investigator's testimony for the defendant that he discovered no evidence supporting the plaintiff's allegation that a defendant police officer had threatened the plaintiff with arrest if the plaintiff did not withdraw his complaint to the IPRA about the defendant's alleged use of excessive force; the investigator was giving lay, not expert, testimony because he reported only what he found based on his inquiry into the matter and not on the conclusions of the IPRA, in Sanchez v. Chicago, __ F.3d __ (7th Cir. Nov. 2, 2012) (No. 10-3801)

Sometimes a witness that might be described as an expert provides testimony that fails to utilize his or her expertise. While the witness may be capable of appearing as an expert, the role of the witness is essentially no different than that of any other percipient witness. FRE 702 emphasizes that the focus should be on the nature of the testimony, not necessarily on the profession of the witness. In a recent case, the Seventh Circuit briefly addressed this issue, noting that a party's challenge to the trial court's admission of certain evidence was unfounded -- particularly if one challenges the testimony on the basis of expertise, rather than on the basis of the witness as personally observing the matter to which he or she will testify.

In the case, Plaintiff Sanchez alleged that various Chicago police officers, including the defendant, used excessive force against him in arresting the plaintiff. In addition, he charged that the defendant failed to intervene to prevent the physical abuse of the plaintiff by officers. The defendant officers provided a very different account of the arrest. They claimed to have stopped to break up a fight between the plaintiff and his brother, and having to handcuff the plaintiff to stop the defendant's struggle. The jury was presented evidence regarding this incident during the plaintiff's five day trail, in which the jury returned a verdict for the defendant. The plaintiff appealed, focusing on alleged deficiencies in the trial judge's instructions to the jury, in particular concerning whether the defendants could be liable for their "failure to intervene in the misconduct of ... unnamed officers," who the plaintiff contended had physically abused the plaintiff. Sanchez, __ F.3d at __.

One evidentiary ground for the plaintiff's challenge to the trial involved the trial judge's granting of the plaintiff's motion in limine to "exclude any testimony about the [police review commission] IPRA's findings." At trial, the defendant presented testimony by a witness who had served as an investigator for the city's police review commission which made an inquiry into the alleged incident between the defendants and the plaintiff. The IPRA investigation "cleared" the defendants of any "wrongdoing." While the trial judge did not allow coverage of the IPRA investigation results, the court did allow the defendant "to elicit testimony from [a witness] IPRA investigator Brian Killen that he had looked into an allegation that the defendant had "threatened to plant drugs on Sanchez if he did not withdraw his complaint to the IPRA. The threat was reportedly made to Sanchez's brother José. Killen testified that he spoke with José, who denied that [defendant officer] Caballero made such a statement to him or that he had reported such a threat to his brother," the defendant. The court also allowed the investigator to provide general testimony "that he found no evidence to support the allegation that [defendant] Caballero had threatened [plaintiff] Sanchez. Sanchez, __ F.3d at __.

. The circuit rejected the plaintiff's contention that this testimony was in the nature of "expert" testimony under FRE 702. The circuit noted that the investigator:

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, whether [defendant] Caballero made a threat or whether [plaintiff] Sanchez was dissembling, [investigator-witness] Killen simply reported that he found no evidence to support the allegation. * * * [Plaintiff] Sanchez did not object to Killen's testimony that [plaintiff's brother] José, when questioned about Caballero's alleged threat, denied having heard a threat by Caballero or reporting such a threat to his brother. That was the most damaging portion of Killen's testimony, as it directly refuted what Sanchez had reported to the IPRA about the threat. Killen's additional testimony that he otherwise found no evidence to support the allegation that a threat had been made, was essentially punctuation. To the extent Killen's testimony necessarily disclosed the fact of the IPRA's investigation into the April 5 incident, it is worth pointing out that Sanchez's own counsel had already elicited testimony in the case about the IPRA investigation and had introduced materials from that investigation.
Sanchez, __ F.3d at __ (citations omitted).

The Sanchez case provides another example that not all persons who have a particular expertise need to testify as an expert witness. Sometimes, the role of the witness is merely to act as a percipient and not to opine on the application of a discipline of a discipline on assessing the case.

Federal Rules of Evidence