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Deadly Force Mindset as Justifiable Defense Questioned

by Kevin Bliss

The science of neurobiology and neuropsychology used to defend officers in shooting incidents has been described as arbitrary at best. Many experts contend there simply is not enough peer-reviewed material to substantiate it as an exculpatory defense.

Federal judges are to use the Daubert Standard to determine whether testimony from an expert witness is based on sound scientific principles and thus admissible into evidence. Stemming from the 1993 Supreme Court case Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993), it states that expert testimony should be based on widely accepted peer-reviewed material. The science of police psychology has not amassed a large amount of peer-reviewed material. It was not even recognized by The American Psychological Association until 2013. Professor of psychology and law at Western Illinois University, Kimberly McClure stated, “We simply don’t have enough scholarship related to officers’ decisions during lethal force encounters to meet the Daubert criteria for science in the area.”

In addition, Lisa Fournier, psychologist from Washington State University said expert witnesses should not have any conflict of interests. They should refrain from “cherry-picking” and should not cite from any articles that are not peer-reviewed.

Laurence Miller is a paid expert witness with a Ph.D. from City University of New York’s (“CUNY”) department of psychology and training as a forensic examiner. Miller charges $10,000 to assess officers who have been involved in a shooting or other stressful situation and $10,000 per day to testify in their defense. He was paid to defend Jason Van Dyke, charged with first-degree murder and 16 counts of aggravated assault when he shot black teen, Laquan McDonald, on Oct. 2, 2018. Miller cited research material from police psychologists William Lewinski and Alexis Artwoh. Sources published in police trade magazines, not peer-reviewed academic journals.

Miller stated that the perception of the circumstances is what dictated Van Dyke’s decision to shoot. The body can respond to stress by distorting cognition, perception, and memory. He said Van Dyke felt his only option was kill or be killed and thus should not be found guilty. He described the body’s fight or flight response while the brain was flooded with a combination of chemicals and that first responders are trained to embrace these stressful situations for extended periods of time which then has adverse effects on cognition.

The jury found Van Dyke guilty on all counts, but the first-degree murder was reduced to the lesser included second-degree. Miller suggested this was due to his expert testimony.

Daniel Reisberg, psychology professor at Reed College, stated that Miller’s testimony ventured into the speculative. In order to submit this type of defense as exculpatory, Miller would have to prove that Van Dyke experienced that particular flood of chemicals in his brain at the moment of crisis. The peer-reviewed journal Criminal Justice and Behavior reported in 2018 that only about 11 percent of the subjects studied experienced any stress-related impairment in a crisis situation. The most influential factor they found in police officers’ decision making was the suspects’ non-compliant behavior, not the stress of the officers.

CUNY professor Phillip Atiba Goff stated, “It’s morally egregious to advance a theory of science that argues because of the job police have, and the way that we train them, that stress should now be exculpatory for law enforcement.” 



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