Federal Evidence Review

In drug conspiracy prosecution, law enforcement expert testimony concerning the use of code words in recorded conversations (which was based on experience and testimonial statements from interviews with informants, cooperators and witnesses) did not violate the Confrontation Clause since the experts “presented their independent assessments to the jury” and “did not become mere conduits for that hearsay,” in United States v. Johnson, 587 F.3d 625 (4th Cir. Dec. 2, 2009) (Nos. 06-4391, 06-4392, 06-4527)

Since the landmark 2004 Confrontation Clause ruling in Crawford v. Washington, the application of “testimonial” statements continues to be tested. Under Crawford, “testimonial” statements of a witness who is unavailable to testify are barred under the Confrontation Clause unless “the defendant has had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). While the Supreme Court declined to articulate the contours that constitutes a testimonial statement, see Crawford, 541 U.S. at 68 & n.10, generally “the declarant must have had a reasonable expectation that his statements would be used prosecutorially . . . .” United States v. Udeozor, 515 F.3d 260, 269 (4th Cir. 2008).

One key issue that a few cases have pondered concerns the extent in which an expert may testify based on “testimonial” statements of non-testifying witnesses. For example, FRE 703 provides that an expert may base an opinion on inadmissible facts or data so long as the information is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Under the rule, to what extent can inadmissible “testimonial” statements be relied upon by an expert? How does the Confrontation Clause operate in conjunction with the rule? These and related issues were recently noted by the Fourth Circuit.

In the case, during a drug conspiracy investigation, several recorded conversations of the defendants were obtained. After charges were filed, two police officer drug trafficking experts testified at trial about the drug code meaning of some of the terms in the recordings. The two experts explained the bases supporting their opinions. The first officer noted:

“Because drug traffickers frequently use code words to avoid detection, he looked for ‘patterns of conversation[ ] that [did not] make sense.’ For example, members of this conspiracy often discussed buying and selling large numbers of ‘tickets’ but did not specify ‘which shows they wanted tickets for . . . . where they wanted to sit, [or] what days they wanted to go to the show.’ Therefore, it became ‘obvious’ in his view that ‘tickets’ was a code word for narcotics.”

Johnson, 587 F.3d at 634 (citations omitted). At another point, the first officer noted that his opinion was based on “several sources of information, such as evidence that had been seized during the investigation, before reaching a conclusion about the meaning of a particular conversation,” including “interviews with witnesses, cooperators, [and] cooperating defendants.” Johnson, 587 F.3d at 634 (citation omitted).

The second officer also focused on context and the “unusual ‘pattern[s] of speech.’” One of the bases for the second officer’s opinion included “informant information, on interviews I’ve done, on evidence that was seized and on the entire — on all the facts that were developed the course of the investigation.” Johnson, 587 F.3d at 634. The trial court overruled defense objections that the expert opinions were based on testimonial hearsay:

“Someone who gives opinions on the meanings of terms of drug transactions has got to rely upon not just what they’ve heard on a particular tape but upon their experience in the field of drug communications and that may have come about through being on the streets. These are things that form their expertise. I think it’s more than the scope of traditional expert testimony for him to rely upon some things. I’m not going to allow him to come in here and testify to the things that would be classic hearsay testimony about what someone else in this case told him, . . . that’s not what I’m going to do. I think the foundation for the opinions he gives can include information he learns through activities on the streets and through discussions with informants in a general sense of how drug people communicate with each other.”

Johnson, 587 F.3d at 634.

Three defendants were convicted by the jury. On appeal, defendant Martin challenged the admission of the expert testimony as based on “testimonial interviews with informants and cooperating witnesses” in violation of the Confrontation Clause.

The Fourth Circuit affirmed the introduction of the expert testimony and found no Confrontation Clause violation. The circuit noted that “an expert’s use of testimonial hearsay is a matter of degree.” As the circuit framed the inquiry:

“The question is whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay. As long as he is applying his training and experience to the sources before him and reaching an independent judgment, there will typically be no Crawford problem. The expert’s opinion will be an original product that can be tested through cross-examination.”

Johnson, 587 F.3d at 635.

The circuit underscored that FRE 703 permits an expert to offer an opinion based on “inadmissible evidence as long as it is ‘of a type reasonably relied upon by experts in the particular field’” which may include testimonial statements. The circuit noted a concern that the defense position “would disqualify broad swaths of expert testimony, depriving juries of valuable assistance in a great many cases.” Johnson, 587 F.3d at 635.

The experts did not “merely transmit[] testimonial hearsay,” but “present[ed] their own independent judgments,” and were cross-examined. The experts did not directly refer to the content of prior interviews with cooperators and other witnesses. The mere “exposure to testimonial hearsay” did not create a constitutional issue. The experts were able to assist the jury as the finders of fact based on their specialized experience which was “the product of the accumulation of experience over many years of investigation of narcotics organizations and contacts with the informants and witnesses who operate within them.” Johnson, 587 F.3d at 635-36.

The fact that the experts were subject to cross-examination distinguished the case from the expert testimonial statements admitted in the recent decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009). In that case, instead of expert testimony, the government introduced certificates of forensic analysis which were “testimonial” and without the testimony of the analyst who prepared them. In other words, “ex parte out-of-court affidavits were used in lieu of trial testimony.”

The Fourth Circuit also distinguished the Second Circuit case of United States v. Mejia, 545 F.3d 179, 188, 199 (2d Cir. 2008). That case involved a drive-by shooting prosecution which included law enforcement expert testimony about the gang MS-13, such as its structure, background, hierarchy, methods and activities, modes of communication. However, the expert testimony merely repeated hearsay statements without using independent expertise to reach an opinion and was inadmissible under FRE 703. For example, the expert testified “about MS-13’s taxation of drug sales by non-members” which “was based on a gang member having told him so during a custodial interrogation in this case.”

The Johnson case highlights the permissible and impermissible uses of testimonial statements by experts. As noted by the Fourth Circuit, if the expert merely echoes the testimonial statements of others as a conduit, then both FRE 703 and the Confrontation Clause may be violated. If, on the other hand, the expert exercises independent judgment in considering testimonial statements, it may be appropriately considered. The challenge may be in applying these principles to the facts of a particular case since, as the Fourth Circuit noted, “an expert’s use of testimonial hearsay is a matter of degree.” Johnson, 587 F.3d at 635.