A Stitch in Haste

Consider the following hypothetical:

A negligence lawsuit has resulted from a motor vehicle accident. The sole question of fact is whether the defendant was speeding negligently. The physical evidence is inconclusive, and the litigants' testimonies obviously contradict each other.

There are, however, two eyewitnesses who are willing to testify, one on each side.

The witness for the defendant is "Mike," an average guy of average age, intelligence and education. He is not an expert in automobiles, but he has owned and driven cars his whole adult life. He has admittedly received a speeding ticket or two over the years, and has been in a few fender-benders, both his fault and not. He is willing to testify, truthfully, that in his opinion the defendant was not speeding negligently.

The witness for the plaintiff is "Maria," a 17-year old orphan who has lived her whole life in an abbey on the outskirts of town. The abbey belongs to a very cloistered, monastic order that has no significant contact with the outside world, including no television, radio, Internet or newspapers. Maria had, prior to the day of the accident, never seen even a stationary automobile, let alone a moving vehicle. The fastest she has ever traveled is 5 miles per hour, riding her antique velocipede around the abbey courtyard. The day of the accident was her first sojourn outside the abbey walls, to walk to a nearby estate to accept a temporary position as the governess for the Von Sirrine family children. She is willing to testify, truthfully, that in her opinion the defendant was speeding negligently.

The defendant seeks to bar Maria's testimony on the grounds that it is irrelevant — that Maria has no reasonable basis one way or the other to comment on the defendant's driving.

What result?

This was the point I was trying to make in my previous post about ordinary citizens passing judgment when police face criminal combat. I was trying to explain how the "reasonable person standard" prevalent throughout our legal system fails in the context of armed combat, an extreme situation that almost no reasonable person has ever experienced. I made only two observations:

1. That, for some non-obvious reason, police in "combat situations" seem to be held to a higher standard than soldiers in combat. (Sean Sirrine posits a possible reason here. Sean's an awesome new blawger, but I find his argument unpersuasive.)

2. That an ordinary citizen, inexperienced in such extraordinary situations, has no reasonable basis to declare that "the police should never return fire if they are being shot at by a deranged man holding an infant" or that "41 bullets were too many for an uncooperative suspect in a dark vestibule pulling a black object out of his pocket."

I did not suggest that police "can do no wrong."

I did not suggest that, in non-combat situations, ordinary citizens are not entitled to an opinion of how they are treated by police.

I did not suggest that police should never be subject to internal investigation and, if warranted, disciplinary action for misconduct.

I did not suggest that police should have absolute immunity.

I did not suggest that a police state is a good idea.

I might concede one relatively minor point. I blogged the following about police in "crime combat":

They do not deserve to have their remorse compounded by any media histrionics, lawsuits or activist protests. Now is not the time for any "No Justice, No Peace" gobbledygook.

Including "lawsuits" in that list seems to irk some people. I'll concede that point on the condition that a finding of misconduct must be made either internally or by an external audit by independent experts, but not by the jury. My thesis is that no civilian jury is competent to make such findings, just as they do not sit on military courts martial.

In other words, liability should not, in fact cannot, be a jury question (damages and other questions of fact could, however, still be left to the jury).

I am no apologist for bad police or bad policing. I have chronicled my outrage over police misconduct relentlessly. Which is exactly why I take having an accurate definition of "misconduct" so seriously.

Still, I appreciate all the comments and trackbacks to the original post. Thanks.