Prosecutors challenged a firearms safety expert in the lead up to the trail of George Kleopa. He is charged with the 2012 shooting of his live-in girlfriend. Kleopa maintains that the shooting was accidental.
The defense wants the firearms safety expert to testify as to how the gun used in the killing was accidentally discharged. Prosecutors argue that such testimony would be nothing more than hearsay. They maintain that the expert’s testimony is solely based upon a demonstration Kleopa gave in the expert’s office two years after the shooting.
The judge ruled that there was “no way under the sun” that the expert would be allowed to testify that the weapon was accidentally fired on the night of the incident. However, the judge was not as definitive about the defense’s desire to have the expert testify that the gun “could have been fired” by accident.
If the court is serious about a Daubert standard for admitting expert testimony, this is problematic.
Kleopa and the victim had been a couple for 14 years when the 30-year-old victim was found dead in the couple’s home. She’d been shot in the face with a pistol owned by Kleopa. The victim’s friends claimed that Kleopa was abusive and that the victim was set to leave Kleopa at the time of the shooting.
Kleopa was not charged with the crime until four months after the incident. At the time of arrest Kleopa’s story regarding the events of that evening changed several times.
Issues With Firearms Safety Expert
The prosecution claims that the defense is using the expert to shield the defendant from having to take the witness stand. Furthermore, the expert has no reliability data to support his opinion except for a single interview with the defendant.
One could also question the necessity of specialized knowledge. If the sole purpose of the expert is to testify as to the possibility of an accident, is that the subject matter of an expert? There are over 1800 accidental shootings a year. Only fifty people a year die by lightning strikes but if you’re at a ball field on a cloudy day, it’s pretty clear that everyone is aware of the potential risk. It’s safe to say that the average juror is aware of the possibility.
Expert Testimony Limited
The judge eliminated the opportunity for the expert to testify for the defendant. The expert was limited to testifying as to the functioning of the weapon.
However, the judge allow the expert to watch Kleopa demonstrate how he handled the gun in open court and then be allowed to comment.
It’s a severe struggle to understand how that fits within Daubert. Why do we need an expert to tell the jury what it just saw? It certainly opens the door to the exact kind of testimony the judge just ruled against. However, it also opens up Kleopa to cross-examination.
What’s Really Going On?
It seems like with four years to develop a defense, the lawyers would have done a better job. They’d demand that their expert compile statistics and provide an extensive expert witness report. This is not the first time a defense counsel has tried to use an expert to say things that the defendant should have had to take the stand to say.
Kleopa’s issue is that he bought one of the safest guns on the market. It’s actually known as a weapon for new shooters. In addition to myriad other safety features, it has to be held properly to be fired. It has a special trigger lock so it doesn’t fire when caught on nearly anything but a finger. It’s also known for its accuracy out of the box.
In short, it will be a tall challenge to prove Kleopa accidentally fired or had an intention to fire at something other than the intended target.