Mere law enforcement experience not enough to act as expert witness


In the case of Krein v State Police [2015 U.S. Dist. LEXIS 97299], the District Court looked into question of expert testimony in case of application of excessive force by State Troopers in West Virginia. The Court used Rule 702 of the Federal Rules of Evidence to analyze the observations of an ex-law enforcement officer with regards to position of a shooter based on bullet trajectory and shell casings. The Court found that the requirements of Rule 702 were not fulfilled by the expert in that he failed to provide sufficient scientific and factual backing to his methodology and conclusions. The Court held that mere experience in law enforcement was not sufficient in the absence of scientific and technical expertise.


In this case, the complainant, Krein, was parked in the parking area of a store when two State Troopers apprehended him based on a valid warrant issued in his name. Krein was asked by Price (one of the State troopers) to stop the car and get out of the vehicle. In spite of the warning issued. Krein tried to veer his car out of the parking lot when Price fired his first shot at Krein’s car. The dispute in this case arises over the position that Price was in when he took the second shot at Krein’s car. According to the complainant, Price was beside the car when he fired his second shot at Krein, through the passenger-side window of Krein’s car. It is the case of the defendant that Price was directly in front of Krein’s car when he fired the second shot. He contended that there was no option but to shoot in order to preserve his own life. To prove the position of Price at the time the second shot was fired, the complainant sought to use an expert witness. The complainant had to prove that Price had used excessive force in apprehending Krein and had acted in a way that no reasonable police officer would.


The expert that the complainant used was one William Flynn who had worked in law enforcement previously in his career. He also had a total of twenty seven cases in which he had given expert testimony. His observation in the present case was threefold: (a) Price fired the second shot from the side of Krein’s car because of the trajectory of the bullet. (b) The position of the shell casing also corroborated the fact that Krein was standing to one side of the vehicle (c) Price, at the time of firing the shot had no reason to believe that his life was in danger and hence he had acted unreasonably in firing the second shot.

The District Court turned to Rule 702 of the Federal Rules of Evidence as well as the Daubert Rule to analyze the expert testimony of William Flynn. For the first point about the trajectory of the bullet, Flynn had nothing to offer as explanation but that he believed that the bullet had traveled from the right side to the forehead and hence the bullet must have originated from that direction. The Court found this logic lacking in methodology and circular. Flynn also showed his lack of expertise by not being able to tell the court about the final position of the bullet. Flynn admitted that he has no expertise in firearms and ballistics or in medical science. Flynn further admitted that the fact that the bullet had traveled through the passenger side window was not clinching evidence about the position of the shooter. Without sufficient factual support, the court excluded Flynn’s testimony on the trajectory of the bullet. With regards to the shell casing theory to pinpoint the location of the shooter, the Court found it lacking in methodology. There is an error of ten to fifteen yards in pinpointing location of the shooter and Flynn was unable to explain why his conclusion was free from doubt. There was also precedence, as laid down in Hathaway v. Bazany [507 F.3d 312, 318 (5th Cir.2007)], from the Court of Appeals which laid down that only experience in law enforcement was not enough to testify about shell casings in the absence of scientific methodology. Thus, the District Court excluded the testimony of Flynn in this regard as well. However, the Court did not exclude the third conclusion that Flynn had put forward.