by D.H. Garrison, Jr.
Originally published in the Association of Firearm Toolmark Examiners Journal, Oct. 1993.
Just because a shot was fired, and just because someone was injured or died as a result of the shooting, and just because a shooting reconstruction was completed…this does not mean that the expert can render an opinion about the intent behind the bullet thus fired.
While many an attorney, whether prosecution or defense, wants to “prove” the intent or lack thereof to a jury, and sometimes tries to use a expert witness to accomplish that end, this does not mean that the shooting reconstruction expert has any scientific basis whatsoever to state an opinion as to what was or was not the intention of the shooter at the moment of the shooting. Intent, after all, is usually an “ultimate issue” and, thus, the purview of the jury, the finders of fact, and cannot properly be addressed by the expert.[1]
Only psychiatrists and psychologists, those paragons of consistently precise opinion and sound experimental scientific integrity, are capable of tackling the issue of intent, often termed “the ability or lack thereof to form the specific intent to commit the crime in question” or words to that effect. And what person endowed with scientific thought would want to wade into the quagmire of psychiatric expert testimony anyway?
In shooting reconstruction, as with all reconstruction, the practitioner’s work tries to answer the questions, What happened? and How did it happen? This might be modified somewhat, during an attorney’s hypothetical question, to What may have happened? and How may it have happened? What attorneys seldom understand about reconstructionists is that they might not know what happened or may have happened or how, but they can often tell you in an instant WHAT DIDN’T HAPPEN. What reconstructionists cannot answer is WHY? This is the job of the jury.
“I think that reenactment showed that he had an intent to kill.”
– District Attorney John Posey[2]
Frequently, attorneys try to bolster their cases for or against an alleged intent matter by disguising a question to an expert as something vaguely science-like in nature. Such a question might look like this: “Mr. Johnson, based on your expertise and your years of experience both with firearms and ammunition, and knowing the velocity in feet-per-second of the shot Mr. Defendant fired at his deceased wife in the hallway of their home, and knowing the distance from the casing found at the scene and the point where Mrs. Defendant fell dead, could you give us an opinion as to whether a shooter in the doorway at the east end of the hall could reasonably expect (read “intend”) to miss his wife, firing it as he obviously did?” The answer, of course, is “No” or “Huh?”, depending on how foolish you want the attorney to look.
Criminal prosecutors will call a firearm a “weapon,” while defense attorneys will call it a “gun.” When prosecutors talk about the defendant “aiming” and “firing” the weapon, defense attorneys respond with phrases like “where the barrel was pointing when the gun went off.” The former will say “finger on the trigger,” while the latter speak of “finger in the area of the trigger guard,” and plaintiff attorneys suing gun manufacturers say “inadvertent physical movement in proximity to the negligently designed and defective trigger mechanism.” All of these advocates have a vested interest in their choice of words (hence the term “mouthpiece”), which emerges in the wording of their courtroom questions to you. Just as you wouldn’t allow attorneys to refer to a cartridge as a “bullet,” you should not let them confuse an action with an intent or a gunshot wound with a bull’s-eye.
Intent questions are often heavily draped in the sacramental robes of scientific jargon. At times they even sound reasonable in that they almost seem to appeal to one’s common sense, as in: “Do you expect us to believe that the weapon discharged accidentally with Mr. Defendant not meaning to shoot his wife?” Well, yes and no. No one but the shooter, and often not even he, knows his true intent. And the reason we’re all in court, of course, is so the jurors can try to determine the shooter’s intent. But people who investigate shootings for a living are not in the intent business and should be particularly wary of those cleverly disguised questions, whether they come from an attorney “on your side” or an “opposing counsel.”
“[The Expert] agreed under cross-examination last Wednesday that he was not testifying that either of the officers was aiming at Lawson’s head when they fired six shots at the car after Lawson tried to run them down.”
– The Toronto Star[3]
Of course, we’ve all faced the cross-examiner with the “Isn’t it possible…” series of questions that’s meant to end with a flustered witness wearily admitting that, “Yes, anything’s possible.” Attorneys slip intent questions into the dark corners of such Q&A marathons. Such as, “Isn’t it possible that Mr. Defendant intended to fire a warning shot into his Siamese cat just to scare his wife?” The answer to this one is, “Yes, and it’s possible that if his wife had been in Cleveland at the time, she wouldn’t have gotten shot.”
Most of the time an alert opposing attorney will leap to his feet when an improper intent question is posed. Sometimes, after a lunch hour, when the judge is napping and the jurors are nodding off, a lawyer will try to slide by a question of intent to the shooting reconstructionist on the witness stand. This is the time to ask for a repeat of the question or a clarification to highlight the words “intended” or “meant to” or “expected.” If this doesn’t work, it’s time to proudly disavow any knowledge whatsoever of anybody’s intentions, expectations, or what they meant to do or not do or might have not meant to do, etc. The easiest way to do this is to say, “I don’t know what the shooter intended.” If you don’t, you can soon expect the other attorney to ask something like, “You don’t know what was intended, you weren’t there, were you?”
Q: So you can’t–again, it’s just your opinion as to where the bullet or where the defect or whatever it was in the—that was in—that actually was in the paint, you can’t tell whether that would have hit anybody or was intended to hit anybody?
A: No, I can’t determine any intent behind a bullet.
– Annie King, GRPD[4]
Naturally you have formed private opinions about the intent of shooters in cases you’ve investigated, but you didn’t (or shouldn’t have been allowed to) stand up in court and declare these judgments aloud. Such opinions have no place in your testimony. Let the attorneys get into “what the shooter really meant to do” during their closing arguments. This is why judges frequently admonish jurors that “the arguments of the attorneys do not constitute evidence.”
After all, we don’t really know what the shooter meant to do, we couldn’t. That’s for a jury to answer: it’s called a verdict. If you look over at the accused shooter sitting with his lawyer, you probably wouldn’t want to look inside his mind anyway, much less claim any scientific certainty about what you think that he intended.
Just because someone got shot and you did your job investigating it and you’re here and the accused is there, it doesn’t mean that you know what he meant to do. . .no matter who asks the question.
Notes
1. Moenssens, A., Moses, R., and Inbau, F., Scientific Evidence in Criminal Cases, Foundation Press: NY, 1973, p. 17.
2. Posey, J., Marin County (California) District Attorney, “Scene of the Crime,” 48 Hours: Hard Evidence, CBS television, producer Rita Braver, May 13, 1992.
3. Crook, F., “Crown Ends Case at Officers’ Trial,” The Toronto Star, March 14, 1992, p. A-18.
4. King, A., Grand Rapids (Michigan) Police Department Crime Scene Technician, 61st District Court transcript, MI v May, July 1992, p. 15.