Why I serve as an expert witness
A retired officer discusses the pros and cons of working as a law enforcement expert witness
By Ed Flosi
As I approached my retirement, I wanted to develop a career as an independent consultant/expert witness. I have a very specific background in law enforcement in the area of use of force and had done some work on the job testifying as a “person most knowledgeable” and as an expert in criminal cases when an officer used force, but the defendant claimed it was unreasonable. I spoke with a few people who were doing expert witness work and here I am, more than seven years later doing something I feel is important and interesting.
What does an expert witness do?
USLegal.com defines an expert witness as, "a witness who has knowledge beyond that of the ordinary layperson enabling him/her to give testimony regarding an issue that requires expertise to understand. Experts are allowed to give opinion testimony which a non-expert witness may be prohibited from testifying to."
The way I see my role is as an advisor to the trier of fact, the jury or the judge if it is a bench trial. A reputable expert witness gathers the facts and circumstances of the incident and then opines on the appropriateness of the officer’s actions.
It is important for an expert to completely examine the evidence before arriving at any opinions. If the expert comes with a preconceived opinion about the appropriateness of the officer’s actions, that expert witness will most likely become a victim of confirmation bias. Any good investigator will tell you to follow the evidence, it is no different as an expert witness.
How to become an expert witness
If you are an officer, based on the definition above, it may seem easy to meet the standard of being a law enforcement expert witness. However, I have cautioned several people about jumping into the deep and murky waters if they don’t have the proper equipment. I know several good officers who had great careers. They did many things but did not truly become a master of all those things.
In court, the expert will have to explain their background and experience as to why they are an expert in a particular area. Here are a few examples of what I have encountered:
- Being of command rank does not automatically translate to being an expert in every field of law enforcement.
- Being an officer for a certain number of years does not automatically translate to being an expert in very specific areas of law enforcement practices.
If you want to become an expert, pick an area you are knowledgeable about. I have turned away cases because they were in areas I had some experience in but not enough to consider myself an expert.
How expert witnesses are hired
I have worked several dozens of cases since my retirement. In general, I am contacted by an attorney who wants to retain an expert for his/her case. We chat briefly to determine if I would be a good fit for the area they need the expert for, and a decision is made whether to retain me or not.
Please notice I wrote just the word “attorney” above. That is because a reputable expert is unconcerned with which party the attorney represents because the opinions rendered will be the same opinion regardless. In other words, if the opinion is based on the evidence, it will be the same.
I have been retained by plaintiffs' attorneys and defense attorneys. I have been retained by district attorneys who are seeking charges against an officer for excessive force. I tell them I will render my opinions based on the evidence and that those opinions may or may not be helpful to their case. A reputable expert witness’s opinion should not be swayed by the attorney to help their case if the evidence does not support it.
Follow the evidence
I have been confronted by some officers who feel that taking cases “against officers” is a treasonous act to law enforcement. An expert witness does not take cases for/against anybody. Yes, they are hired by an attorney who represents one of the parties but an expert works with the attorney, not the client of the attorney. Again, the reputable expert witness is concerned with the facts and circumstances of the incident, which will lead to the expert’s opinion regardless of who the retaining attorney represents. In other words, let the chips fall where they may.
I believe wholeheartedly that the majority of officers are good people who make good decisions (under stress or not). That said, some don't. If an officer does act in an unreasonable manner that results in an alleged civil rights violation, based on the evidence available, doesn't the person bringing the action against the officer deserve to have their case heard and presented?
As law enforcement professionals, we must accept the fact that some officers do not belong on the job and some will make poor decisions. A certain portion of the public already has a negative view of law enforcement, and nothing will change that…ever. Most people I believe are rational and do not hate law enforcement. When things do go wrong or where there is such overwhelming and obvious evidence of an officer’s wrongdoing, these people will also conclude that "When it is wrong, it is wrong."
If we as law enforcement professionals attempt to defend the actions of an officer (or tacitly sit by) who violates the law or the civil rights of another with “maybe it could have been” or “what if this were the case” type of fantasies, then we damage our credibility with those who generally support us. I believe most law enforcement professionals would agree with that and is why I serve as an expert witness.
About the author
Ed Flosi is a retired police sergeant from San Jose, California. Ed has a unique combination of real-world experience and academic background. He has worked several assignments including field training program, training unit, narcotics, special operations - K9 handler, research and development, and custody facility supervisor. He has qualified as an expert witness in state and federal courts in police practices/force options and is the president of Justitia Consulting and the principal instructor for PROELIA Defense and Arrest Tactics. He has a Master of Science degree from California State University Long Beach. Ed is a Certified Force Analyst through the Force Science Research Center.