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Criminal law, Attempted second-degree murder with a firearm, Evidence, Demonstrative aids, Experiments, Opinion testimony, New trial

Posted by John P. Rutkowski | Sep 13, 2020 | 0 Comments

Experiment conducted by police detective involving the shooting of a shirt from different distances. Trial court erred in allowing evidence of an unscientific experiment conducted by a police detective that was intended to prove that the victim was shot at close range, which would have been consistent with defendant's proximity to the victim at the time of the shooting -- Discussion of general rule regarding admissibility of an experiment at trial. Substantial similarity requirement was not met with regard to the bullet and gun variables between the actual event and the experiment where neither the caliber of the gun nor the size of the bullet fired at victim were known and crime analyst testified that hole in victim's shirt may have been made by a knife, not a bullet of any kind. Furthermore, state failed to offer proof as to the similarity of victim's shirt and the test shirt. Trial court erred in allowing detective to testify regarding his opinion that the test shot fired from close range most closely resembled the hole in victim's shirt -- Comparisons and opinion testimony are generally only permitted if done by expert witnesses, which detective was not. Errors were not harmless. Remand for new trial. 

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About the Author

John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-seven years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as an Assistant State Attorney in Florida before going in to private practice and representing good people in bad times who have been accused of criminal offenses, dui, and appeals.


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