You Are Your Best Expert Witness
Are you getting the total benefit from all those hours in advanced classes and out on the range?
On a recent Concealed Carry Podcast Episode 221, we presented another Case of The Week from Attorney Andrew Branca. In the case, STEPHEN D. RANKIN v. COMMONWEALTH OF VIRGINIA, an officer appealed his first-degree manslaughter conviction on the grounds that testimony from an expert witness was denied by the trial judge. The appeals court ultimately affirmed the conviction. While this was certainly not the sole reason for the conviction, it brought to light a couple of important topics.
First, how articulation of your actions during a shooting is paramount. And secondly, why you have to document all your training and experience.
As a cop, I carefully documented my hours of training and experience in certain fields. For example, I attended several training classes to understand how the human body reacts to various drugs and alcohol. It may seem simple, everyone knows what a drunk or high person looks like right? Well, there is actually a lot more that goes into it.
Sometimes a medical condition or brain injury can appear similar to being under the influence of a substance. With proper training and experience, one can differentiate and explain why they arrested a person instead of calling paramedics.
Even when a preliminary alcohol screening (PAS) device is available, the ability to gauge a driver's blood alcohol content (BAC) using only a flashlight and a finger is an important skill when determining if a driver is under the influence (DUI).
My formal training and thousands of hours conducting investigations on people under the influence allow me to testify in court, with specialized knowledge on the subject. It went a long way to explain my actions and thought process, as well as gave me credibility in the eyes of a juror.
Application For a Civilian Concealed Carrier:
Apply this same concept to an incident where you use deadly force to defend yourself or someone else. The biggest question will be, “why did you use the amount of force you did?” From listening to our podcasts, and reading our content, I hope you have realized that for the overwhelming number of incidents, simply saying “I feared for my life” is not going to cut it.
I hope this doesn't shock you but, there are many people who believe it to be excessive to shoot an attacker armed with a knife who is 10 feet away. These people may end up on your jury, and they would be said to possess common knowledge on the use of deadly force. But why do you know this idea about knives to be false? It isn't a fact that you were born with.
You likely learned this in a formal, defensive, handgun class. There the instructor may have explained how deadly and quick knife attacks are. He may have explained the time it takes to observe an attacker, respond and draw your firearm, and then place well-aimed shots on that attacker without missing. Understanding all this ‘specialized knowledge' you can now begin to articulate not just that you feared for your life, but why you had that fear.
To use this specialized knowledge in court, and explain how it guided your actions, you need to have possessed that knowledge at the time of the event. Learning about such things afterward could not have honestly affected your actions when you squeezed the trigger.
This is where your class attendance certificates and hours of logged trigger time are crucial. They all paint a picture for the juror, helping to explain what was in your mind and how it affected your actions. Now a potential juror can better understand why your actions were honest, reasonable and legal, even if they wouldn't have done the same thing.
Why Not Just Hire an Awesome Expert Witness?
Expert witnesses are super important and a great way of backing up your assertions of why your actions were justified, but they are not a silver bullet. And they usually cost a lot of money. Furthermore, expert witnesses can only testify if:
- The information presented by the expert witnesses is knowledge that could have only been gained through specialized training or experience.
- The information is relevant in some way to the facts of the case.
- The information of which the expert witnesses testifies to must have been known to the defendant, at the time of the incident.
As you can see, calling in an expert witness is only going to work if you yourself possessed that knowledge.
An expert witness is used to bolster your reasons for acting the way you did, not to justify your actions after the fact. If you read the facts of Rankin v. Commonwealth or listen to the Case of the Week in episode 221 of the Concealed Carry Podcast, you will see that this is exactly why the officer's expert witness was not allowed to testify for his defense.
Self-defense laws vary greatly from state to state, and it behooves you to understand your state's specific laws. If you are curious about how much you actually know about general self-defense law, you should take this Self Defense Quiz created by Andrew Branca himself. Thousands have already taken it, and what people don't know about self-defense law is pretty shocking.
I say quite often that I can train anyone on the how of self-defense handgun shooting fundamentals. The how is what we spend most of our time on and people think it is the skill set most needed in a deadly force encounter. Certainly, you must be proficient, but it is the understanding of when and articulating why you use deadly force, that shows a deeper understanding of self-defense application.
So don't sell yourself short on all your training. Get certificates or print out a copy of any course curriculum and document your time at the range. We know how important documentation is. That is why when we redesigned the Concealed Carry app we included a way to track your training.
To quote Andrew Branca, ‘you carry a gun so you're hard to kill, know the law so you're hard to convict.'
Matthew Maruster, thanks so much for the post.Much thanks again. Really Cool.
Thanks Mike. Glad you got something from it ??