A couple of months ago, the court of appeals decided State v. McDowell, __ N.C. App. __, 715 S.E.2d 602 (2011). The defendant was convicted of first-degree murder notwithstanding his claim of self-defense. A passage from the court’s opinion caught my eye: Dave Cloutier, an expert in use-of-force science and self-defense tactics, testified that, given Defendant's account of the events that occurred at the time of the shooting, Defendant’s initial decision to use force against [the victim] was reasonable given the “pre-attack cues” that Defendant had received and applicable “use-of-force variables.” The factors that Mr. Cloutier deemed relevant included [the victim’s] decision to point a shotgun at Defendant, the fact that [the victim] threatened to kill Defendant, the fact that Defendant feared for his life, and the fact that Defendant needed to react quickly. The expert’s testimony wasn’t an issue in the case, but I wasn’t very familiar with use of force experts and wondered whether the testimony described in the court’s opinion should have been admitted in the first place. After a bit of research, it appears that there are two basic concerns with testimony from use of force experts. (As an aside, if you’re wondering what makes a person an expert in the use of force, Cloutier’s CV is available on the IDS website here.) First, does the witness really possess “specialized knowledge [that] will assist the trier of fact,” as required by N.C. R. Evid. 702(a)? Second, does the witness’s testimony constitute an improper legal conclusion? As to [...]
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