Evid.Code, § 720.) In almost every case, the investigating officer’s expert qualifications are dubious. He must qualify as an expert in the relevant field. Obviously, even if the officer is disclosed as an expert, this does not make him one. If defense counsel failed to disclose the officer as a non-retained expert, the officer is limited to opining as a lay witness. When evaluating admissibility of an officer’s opinion, the first question to ask is whether the officer will be testifying as an expert. Precluding officer from testifying as an expert With respect to methodology: explore any scientific standards, equations or literature relied upon, and ask whether the officer can identify the error rate or cite to studies supporting the reliability of that methodology.Īrmed with this deposition testimony, you are better poised to exclude improper opinions.With respect to training and expertise: explore in detail the officer’s training (or, more likely, lack thereof) in accident reconstruction, physics, engineering, biomechanical engineering, human factors, and accident investigation.With respect to the law applied: identify code sections the officer failed to consider, and identify where the officer is relying on subjective interpretation of the vehicle code, as well as what standards are being applied (i.e., is any objective standard used to determine whether a speed is “safe” or is that just a gut feeling or retrospective analysis?).With respect to facts and witness statements relied upon: Confirm a lack of personal knowledge where applicable, verify which portions of the report contain verbatim witness statements versus summaries, and identify where the officer is assessing witness credibility or making assumptions.For each opinion or conclusion expressed in the police report, identify all the bases, including (a) facts and witness statements relied upon, (b) law applied, (c) training and expertise, and (d) methodology.This would include opinions regarding fault (aka “primary factor”), causation, vehicle code violations, accident reconstruction (i.e., times, speeds, distances, and/or point of impact), and human factors (i.e., visibility or perception/reaction time) Confirm the officer does not intend to express any opinions other than those contained in the police report.In addition to exploring percipient knowledge (including measurements, physical evidence, and statements taken at the scene), the deposition should explore potential expert testimony. It may be necessary to depose each investigating officer, including the lead investigator, the report author, and any officers who took measurements or other witnesses that gave statements. The potential unfair prejudice to our clients is too great to ignore. We trial lawyers must proactively undermine and exclude such testimony. In one breath she may interpret the law, form unsupported accident reconstruction opinions, serve as a mouthpiece for inadmissible hearsay, deliver a closing argument and supplant the jury’s role. In such cases, the police officer – who is neither judge, nor jury, nor engineer –becomes a sort of super expert. Sadly, the above example is taken, almost verbatim, from a real trial transcript. At that point, they’ve fulfilled Vehicle Code 21717, which requires them to merge safely. In terms of your expertise enforcing the Vehicle Code, once the vehicle had merged 50 percent into the bike lane, is there any requirement that the driver making the turn look back to make sure nobody is trying to pass them on the right?Ī. Once the car starts to merge over, that tells the cyclist to merge left and go around. If you have an experienced bike rider, which the plaintiff here likely is since he had a very nice bike, he’s looking to see whether the vehicle is merging to make a right-hand turn. Oh, the bicyclist should be looking from way back to see what the vehicle is doing. If a vehicle started to merge into the bike lane, as if to make a right turn, what is the obligation of the bicyclist?Ī. Would a driver approaching the intersection be able to see a cyclist in the bike lane? However, over your objections, the examination – and your case – begins to go off the rails. Neither the traffic collision report nor any legal opinions regarding “negligence” are coming into evidence. After all, the judge granted your motions in limine. Her one-sided traffic collision report summarily found your client at fault.īut you are not overly worried. All eyes are on the crisp uniform, gun and badge. The officer strides confidently to the stand. You watch as defense counsel calls the investigating officer. You are representing a cyclist in an auto-versus-bicycle trial.
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