United States v. Terry Joe Smith, Nos. 14-3744 & 14-3721.  

Terry Joe Smith, a police officer in Putnam County, Indiana (roughly midway between Indianapolis and Terre Haute), was convicted by a jury in federal court of violating 18 U.S.C. § 242 by depriving two persons, under color of state law (which is to say in Smith’s capacity as a police officer), of their constitutional right not to be subjected to the intentional use of unreasonable and excessive force.

In short, Smith and other police officers were summoned to a domestic dispute in a trailer park; the dispute had turned violent. Smith handcuffed the man involved in the dispute, who was named Jeffrey Land, and led him toward his patrol car. When they arrived, Smith raised Land in the air with Land’s body horizontal to the ground, dropped him, and drove his (that is, Smith’s) knee into Land’s sternum or back, causing him to defecate. Later that day Smith bragged to another officer that it wasn’t the first time that he’d made someone defecate himself.

The critical witnesses at Smith’s trial were the police officers who had been present when he committed the violent, gratuitous, and sadistic batteries of Warren and Land. Smith’s lawyer objected to portions of the police officers’ testimony on the ground that it was expert testimony and the officers hadn’t been qualified as expert witnesses under Fed. R. Evid. 702.

The judge overruled the objection on the ground that the testimony was authorized by Rule 701. That rule provides that “if a witness is not testifying as an expert, testimony in the form of an opinion is limited to [an opinion] that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

The officers did offer some opinion evidence, mainly that Smith had used excessive, unreasonable force against Warren and Land, but that evidence was not based on “scientific, technical, or other specialized knowledge” of the sort that only a witness whom the judge had qualified to be an expert witness would be allowed to testify to. See United States v. Perkins, 470 F.3d 150, 155-56 (4th Cir. 2006).

Anyone who saw what the police saw Smith doing to Warren and Land would have been able to offer an opinion on whether the force was reasonable and would have characterized Smith’s conduct the same way the officers did.

The recurring theme of the testimony of the officers who had witnessed Smith’s assaults on the unresisting Warren and Land was that his use of force against them was unjustified because they weren’t resisting. It would have been absurd to require the police officers to be qualified as experts on the use of force—perhaps subjected to a Daubert hearing—in order for them to be permitted to give testimony that a witness with no police training or experience could have given with utter confidence—and indeed that jurors would have found obvious without any evidence other than what the police had witnessed.

Conviction affirmed.

By:  Chicago Criminal Defense Attorney Michael J. Petro

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