Problem Of Dual Expert and Fact Law Enforcement Testimony Avoided By Steps Taken In Drug Trial

In drug distribution trial, supervising officer’s expert testimony that drug quantity was possessed for distribution rather than personal consumption did not involve the dangers of dual fact/expert law enforcement testimony since the expert only addressed an inference that might be drawn from the circumstances of the defendant's arrest, appropriate cautionary instructions were given, and the witness never specifically referred to the defendant although he did testify as a percipient witness about the specifics of the defendant's arrest that were elicited by the defense, in United States v. Morris, 576 F.3d 661 (7th Cir. Aug. 10, 2009) (No. 08-2979)

Prior posts have explored the difficulties of presenting a law enforcement witness as both an expert witness and as a fact witness. Two recent posts noted the criticism of this practice by the Seventh Circuit, see Overcoming Potential Prejudice In The Dual Fact/Expert Law Enforcement Witness (discussing the special issues that can arise when a law enforcement witness testifies as a lay (or fact) and expert witness); Seventh Circuit Warns About Using Dual Fact / Expert Law Enforcement Testimony (Circuit finds use of dual fact and expert law enforcement testimony was error because it was unclear which parts of the expert testimony were based on fact and expert testimony, and the trial court’s failure to instruct on evaluating the opinion testimony). Recently the Seventh Circuit added to its analysis of the dual fact/expert witness issue – this time explaining why an officer’s testimony did not cause jury confusion.

In the case, defendant Morris came to the attention of a Metro Narcotics Unit supervised by witness Sergeant Welsh. After a search warrant, the defendant was charged with possessing 23.7 grams of heroin with the intent to distribute. At trial, the prosecution offered expert testimony by supervisor Welsh to explain “common practices of street-level narcotics sales, including what quantities of drugs are generally possessed for purposes of distribution rather than individual consumption. Welsh testified that 23.7 grams of heroin ‘would be consistent with distribution quantity.’” In addition to this expert testimony, Welsh also testified as head of the Narcotics Unit regarding its investigation into the defendant and the search of the defendant’s possessions. After his conviction, the defendant challenged Welsh’s testimony as being improper dual fact/expert testimony and as violating FRE 704(b) in opining on the defendant’s state of mind. Morris, 576 F.3d at 673.

The Seventh Circuit noted “some merit in these challenges,” but ultimately rejected them as unfounded. The difficulty arose because Welsh, was a “supervisor” of the narcotics unit that searched the house that defendant operated from. In fact, the jury learned from the “[t]estimony by other members of the search team and by Welsh himself on cross-examination” that “Welsh was personally involved in executing the warrant on the house” and that this action ultimately led to the defendant’s arrest for distributing heroin. Morris, 576 F.3d at 673.

The defendant argued the problem of the dual fact/expert law enforcement witness testimony was unfairly prejudicial under FRE 403. As the circuit explained, “Testimony runs the risk of being overly prejudicial when, as here, the expert witness was a law enforcement officer who was also involved in the investigation at issue.” This occurs if “the jury [ ] attach[es] undue weight to the officer's testimony, either by mistaking an expert opinion for what is really only an eyewitness observation, or by inferring that the officer's opinion about the criminal nature of the defendant's activity is based on knowledge of the defendant beyond the evidence at trial.” Morris, 576 F.3d at 675 (quoting United States v. Lipscomb, 14 F.3d 1236, 1242 (7th Cir. 1994) (quotations omitted)).

This did not occur in the defendant’s case because:

Proffer Only Expert Testimony: As one significant factor, the circuit noted that no error had occurred since “Welsh testified only as an expert” and his “testimony focused exclusively on his expert opinions regarding the drug trade in Rockford and his analysis of the facts related to Morris's case, e.g., that 23.7 grams of heroin, possessed by anyone, ‘would be consistent with distribution quantity.’” Morris, 576 F.3d at 675.

No Specific Reference To Defendant: In addition, the expert “[n]ever once … refer[red] to Lonnie Morris specifically or even allude[d] to his impressions or recollections from the day of the search, nor did he express an opinion about Morris's actual state of mind.” Morris, 576 F.3d at 675 (citing United States v. Mancillas, 183 F.3d at 706 (concluding that a dual-role witness “based his opinion on his knowledge of the drug trade rather than on any alleged or conceived familiarity with the working of [the defendant's] mind”)).

Fact Testimony At Insistence Of Defense: To the extent that the expert would also be associated with factual testimony, this was a result of actions by the defendant. Specifically,

“This is not to say that the jury was unaware of Welsh's role in the Morris investigation. Several government witnesses referred to Sergeant Welsh during their testimony, and Welsh acknowledged on the stand that he was the supervisor of the MNU and had been involved in the search of 707 Albert. Notably, however, virtually all of Welsh's statements regarding his role in the investigation were not brought out by the government but rather were elicited by defense counsel on cross-examination.

“The government's decision not to use Welsh as a fact witness was an important step in avoiding potential juror confusion or crossing the line into improper opinion.”
Morris, 576 F.3d at 676 (citing United States v. Mansoori, 304 F.3d at 654 (recognizing a reduced potential for prejudice where the government structures testimony “in such a way as to make clear when the witness is testifying to facts and when he is offering his opinion as an expert”)).

Appropriate Limiting Instruction: Finally, the trial court gave a “standard” limiting instruction to the jury about the evidence it would receive from the expert, which served to mitigate against jury confusion. In the defendant’s case, the court directed the jury:

“You should judge [expert] testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean you're required to accept it. Give the testimony whatever weight you think it deserves considering the reasons given for the opinion, the witness' qualifications, and all the other evidence in the case.”
Morris, 576 F.3d at 676.

Not only did these four factors ensure that the witness’s testimony did not violate the dual expert/fact witness limitation under FRE 403, but it also removed the testimony from possibly violating FTE 704(b)’s prohibition against expert testimony regarding the mental state of the defendant. With regard to FRE 704(b) requirements, the circuit noted that the prosecution had the burden of proving that the defendant intended to distribute narcotics under 21 U.S.C. § 841(a)(1) and that this element is “generally proven through circumstantial evidence, often in the form of expert testimony.” Morris, 576 F.3d at 674.

An expert avoids violating FRE 704(b) by making it clear that his or her testimony “merely identif[ies] an inference that might be drawn from the circumstances surrounding the defendant's arrest, and ... not purporting to express an opinion as to the defendant's actual mental state.” Morris, 576 F.3d at 675 (quoting United States v. Lipscomb, 14 F.3d 1236, 1240 (7th Cir. 1994) (expert witness testimony that “simply describe[ ] in general terms the common practices of those [hypothetical individuals] who clearly do possess the requisite intent, leaving unstated the inference that the defendant, having been caught engaging in more or less the same practices, also possessed the requisite intent” did not violate FRE 704(b)). What is significant is that this leaves the jury “to decide whether to make the logical connection from the expert's testimony to the case at hand” to the elements of the charged crime. Id.

Federal Rules of Evidence