Using Lay Testimony To Admit Interpretation Of Coded Words

The First Circuit explains the circumstances in which an undercover agent may give lay testimony “as to the meaning of code words or phrases” concerning drug quantities based on the agent's “undercover drug buys”; noting as one factor whether the witness's lay testimony “corresponds” to undisputed facts, in United States v. Santiago, 560 F.3d 62 (1st Cir. March 19, 2009) (Nos. 07-1575, 07-1718, 07-1728, 07-2017)

In explaining the meaning of coded words, can lay testimony be offered under FRE 701, or must expert testimony be used, under FRE 702? Just when does a witness draw upon experience as an expert and when does that witness draw upon that experience in making essentially personal observations? In considering this issue, the First Circuit recently noted that lay testimony may be rationally based on the perception of the witness in part when the lay opinion “corresponds” with undisputed facts in the case, removing any “speculative” concerns.

In Santiago, members of a large-scale heroin distribution conspiracy in Massachusetts were arrested after an extensive investigation led by federal, state and local police agencies. At trial, a DEA agent testified concerning his undercover role during the investigation. He also testified as a lay witness about “the meaning of code words or phrases used by the defendants, primarily to designate drug quantities.” Santiago, 560 F.3d at 69. The defendants objected that the agent “had not been qualified as an expert” to testify on the use of coded language. In addition, even if the agent could testify as a lay witness, the defendants argued that the “inferences” to which he testified “were speculative and their admission an abuse of discretion.” Santiago, 560 F.3d at _.

The First Circuit affirmed the admission of the agent's testimony as lay testimony under FRE 701. The circuit set out a three-part test, liberally quoting from the text of FRE 701 (a), (b) and (c) for the admission of such testimony. In considering the testimony, the circuit emphasized the first factor and did explain the application of the other two factors. As the First Circuit explained, lay testimony:

“... opinions ... [1] 'rationally based on the perception of the witness,' [that] are [2] 'helpful to ... the determination of a fact in issue,' and are [3] 'not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.' Testimony about coded language-like, for example, testimony about vehicle speed-can be admissible, depending on its content and other circumstances, either as lay or expert testimony.”
Santiago, 560 F.3d at _. The circuit acknowledged that application of this standard often seemed to result in contradictory results. Santiago, 560 F.3d at _ n.1 (contrasting United States v. Rivera-Rosario, 300 F.3d 1, 17 (1st Cir. 2002) (allowing expert testimony about the meaning of “code words”), with United States v. Grullon, 545 F.3d 93, 95-96 (1st Cir. 2008) (permitting lay opinion testimony on meaning of coded language)).

In affirming the law enforcement lay testimony, the circuit focused on the first factor -- that the proffered opinion was rationally based on the witness's perception. In particular, the circuit first noted the personal involvement of the agent in the investigation of the defendants. The agent had “listened to over 90 percent of the intercepts, learned voices and patterns, and heard and used the coded language in his undercover drug buys relating to the investigation.” Santiago, 560 F.3d at _ (citing United States v. Maher, 454 F.3d 13, 24 (1st Cir.) (“Rule 701 ... is meant to admit testimony based on the lay expertise a witness personally acquires through experience, often on the job.”), cert. denied, 549 U.S. 1025 (2006)).

Second, the circuit found sufficient verification of the agent's personal observations. The agent's conclusions about the meaning of “various of the code word[s] ... were borne out by the conduct of the defendants. For example, [DEA lay witness] Chavez's interpretation of [defendant] Rodriguez's request for ‘$60 out of the bank’ was supported by the seizure of 60 grams of heroin (10 from his person and 50 from his home) shortly thereafter. Far from being speculative, Chavez's interpretations corresponded to locations, drug quantities and the like.” Apparently, while there was a dispute as to the total weight of heroin involved in the conspiracy, there had been no dispute as to the precise identity and weight of the seized amount which correlated to the coded conversation that the agent interpreted.

The First Circuit's brief exploration of the “rationally based on the perception of the witness” requirement from FRE 701(a) suggests one way to satisfy this requirement is by correlating the coded language with the facts of the case (as the agent did in Santiego in making drug buys). In addition to the personal experience of the witness, it helped to verify the meaning of the coded terms (by comparing the agent's interpretation of what the code users were saying about a particular fact with unchallenged evidence as to what that fact actually turned out to be).

Federal Rules of Evidence