Second Circuit Reverses Admission of Forensic Pathologist's Testimony on Police Officer Credibility and Sensory "Misperceptions"

A Second Circuit panel has reversed a defense verdict in an excessive force case based on the trial court's erroneous admission of testimony from a forensic pathologist. The claim was brought by a man shot in a police chase. The medical evidence showed him to have been shot in the back, but the officers testified that the man was facing them and brandishing a weapon when shot. The lower court permitted the officers' expert to testify that he credited the sincerity of the officers' testimony, and also to opine that it probably derived from a sensory "misperception." In a published decision, the Second Circuit held that the expert's opinion on credibility invaded the province of the jury, that his expertise in perception was doubtful, and that it was methodologically illegitimate for him to have formed his "misperception" opinion as a way of reconciling the medical evidence with his own judgment that the officers' testimony was sincere. See Nimely v. City of New York, No. 04-3240 (2d Cir. June 27, 2005) (Jacobs, Calabresi, & Rakoff, JJ.).