Law Enforcement Expert Witness Testimony Allowed in Part

The plaintiffs filed a lawsuit against defendant detective for a violation of their Fourth Amendment rights.  The defendant hired a law enforcement expert witness.  The plaintiffs filed a motion to exclude this testimony.

Facts:  This case (Ricky Shew and Frances Shew v. William Horvath – United States District Court – Middle District of Florida – February 16th, 2017) involves a claim of violation of Fourth Amendment rights by the defendant (Detective Horvarth) against the plaintiffs (Shews).  During an investigation of the Shews of possible mortgage fraud, Horvarth executed a probable cause affidavit to obtain an arrest warrant for the Shews.  The State Attorney subsequently decided not to prosecute the case.  The Shews sued Horvarth.  Horvarth had hired Dr. Richard M. Hough, Sr to provide law enforcement expert witness testimony on the issue of probable cause.  The Shews filed a motion to exclude this testimony.

Discussion:  The Shews argue that Dr. Hough’s testimony should be excluded because 1) the question of whether a probable cause affidavit establishes probable cause is a question of law, and thus, not allowed under Daubert; 2) His methodology is unreliable; and 3) he is not qualified to offer opinions on mortgage fraud investigations.

The court first addressed Dr. Hough’s qualifications.  The court finds that his education and experience as a law enforcement agent and instructor qualify him to be an expert witness in this case.  Even though the Shews maintain that Dr. Hough is not a specialist on mortgage fraud, he is qualified on matters of criminal investigations.  The court opined that the Shews could cross examine Dr. Hough on his experience with mortgage fraud investigations during trial.

The court next moves to the reliability of Dr. Hough’s testimony.  Dr. Hough stated that his expert opinion in this cases was based on his knowledge of law enforcement, his education in the field, his experience, as well as his ongoing study and teaching.  The Shews argue that Dr. Hough did not analyze Hovarth’s conduct in how police officers should determine whether a crime has been committed.

Specifically, the Shews argue that Dr. Hough did not discuss that fact that Horvarth executed a probable cause affidavit without knowing of the misrepresentation occurred during the mortgage lending process, which is what the Florida statute requires.  The court opines that Dr. Hough does in fact address the lending process in his report.  Additionally, the court states that it seems that the Shews disagree with the results reached in which he used a methodology that they admit is reliable.  The court, therefore, opined that the methodology used by Dr. Hough in this case is allowable.

In addition, the Shews argue that Dr. Hough’s opinions are based on information that was obtain by Defendant’s counsel during discovery.  The court opines that they do not identify any discovery to which they object.  That said, Dr. Hough’s review of documents that were not available during the time of Horvath’s investigation does not make his methodology unreliable.

The court also maintains that Dr. Hough’s testimony will assist the trier of fact, but that any legal conclusions will not help. Any legal questions made to the jury would be the role of the judge.

Conclusion:  The Shews’ motion to preclude the expert witness testimony of Dr. Hough is granted in part and denied in part.