In the July 2015 issue of Plaintiff Magazine, Sara Peters and Valerie Rose observe how the investigating officer in a motor vehicle accident may be a defense expert.
With motions in limine, the traffic collision report and legal opinions regarding “negligence” by the investigating officer in the report may not come into evidence, but an investigating officer may still be a witness.
Advocacy begins before trial with depositions of each investigating officer, including the lead investigator, the report author, and officers who measured or took witness statements.
The depositions should explore percipient knowledge, including measurements, physical evidence, and statements taken at the scene. With respect to witness statements, confirm lack of personal knowledge where applicable, verify which portions of the report have verbatim witness statements versus summaries, and identify where the officer assesses witness credibility or makes assumptions.
The depositions should look into expert testimony. Confirm the officer will not express opinions, such as fault, causation, and vehicle code violations, other than what is in the police report. For each opinion in the police report, identify the bases, including witnesses relied on, law applied, and training.
In California, if the defendant discloses an officer as an expert witness, it is within the trial court’s discretion to admit the expert opinion. (Zelayeta v. Pacific Greyhound Lines (1951) 104 Cal.App.2d 716, 723.) The California Evidence Code require the testimony to be helpful to the jury, non-legal in nature, based on reliable material, and based on a reliable methodology.
An investigating officer may give opinion beyond common sense. The opinion must do more than apply law to circumstances understood by the jury. The expert must not testify regarding a legal issue since it is the judge’s responsibility to instruct the jurors on the law. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1159.)
An officer’s expert opinion must not be speculative and be based on matter an expert in that field may reasonably rely. The officer’s methodology must be sound, and his conclusions must be supported by the record. (In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563-64.) Even where the officer is qualified as an expert, courts have held opinions based on hearsay are inadmissible. (Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58.)
On the witness stand, the police officer becomes an expert to interpret the law, form accident reconstruction opinions, and deliver a closing argument. The plaintiff attorney needs to undermine and exclude such testimony.
Read the Articel Here