Avoiding Impermissible Blurring Of Law Enforcement Expert And Lay Testimony

9th Circuit Court Seal

Ninth Circuit affirms use of law enforcement lay and expert testimony where the trial court divided the testimony in phases and provided a jury instruction advising that the jurors were the ultimate fact finders; the expert also did not provide impermissible opinion testimony concerning the defendant’s intent, in United States v. Anchrum, 590 F.3d 795 (9th Cir. Dec. 30, 2009)

We have previously noted the special problems that may arise when a law enforcement witness provides both expert and lay testimony. See Overcoming Potential Prejudice Concerns In Using A Dual Fact and Expert Law Enforcement Witness; Plain Error Results In Using Dual Fact And Expert Witness; Problem Of Dual Expert and Fact Law Enforcement Testimony Avoided By Steps Taken In Drug Trial.

While this dual testimony is not per se inadmissible, unless certain trial precautions are taken, the dual testimony may be subject to challenge on appeal based on the blurring of lay and expert testimony. A recent Ninth Circuit case considered this issue and highlighted the steps that may be taken to avoid possible error.

The case commenced after a drug detection canine alerted on a suspicious parcel. In executing a search warrant, agents discovered one-quarter kilogram of cocaine and one ounce of heroin inside. A tracking device was installed and the package was delivered to defendant Anchrum who accepted it from an undercover agent. After the defendant learned he was being followed, he crossed several lanes and abruptly made a u-turn. During a chase, the defendant failed to yield to the agent’s lights and sirens. Agent Solek and his partner tried to block the defendant with their vehicle on a side street, and the defendant stopped. As the agent approached, the defendant accelerated, drove toward the agent, struck him in his right knee, and drove on. Another officer pursued the defendant and similarly tried to block his path. The defendant hit the officer’s vehicle. The defendant exited his vehicle and fled on foot and was ultimately apprehended. Inside his car were loaded firearms, a scale, a package containing cocaine and heroin and the tracking device. During the trial, the agent who had been struck testified as a lay and expert witness. The trial court:

“separated the testimony into a first ‘phase,’ consisting of Agent Solek’s percipient witness testimony regarding the investigation and arrest of Anchrum, and a second ‘phase,’ consisting of Agent Solek’s expert qualifications as a drug investigator and his opinions that drug dealers usually possess guns for protection, use scales to weigh drugs, and rent cars to avoid detection. A sidebar conference separated the two phases of the agent’s testimony. Following the end of the percipient witness portion of testimony and the sidebar, the prosecutor transitioned into the expert phase by stating ‘Agent Solek, I’d like to shift gears here a little bit and talk about some of your education, professional training, and law enforcement experience.’”

The jury convicted the defendant as charged. On appeal, the defendant challenged the lay and expert testimony of the agent.

In affirming the admission of the lay and expert testimony, the Ninth Circuit reviewed four “concerns” in allowing a law enforcement witness to provide percipient and expert testimony based on its decision in United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007). As the circuit summarized the Freeman case:

“First, we expressed concern ‘that a case agent who testifies as an expert receives “unmerited credibility” for lay testimony.’ [Freeman, 498 F.3d at 904] ( quoting United States v. Dukagjini, 326 F.3d 45, 53 ). Second, we noted that ‘expert testimony by a fact witness or case agent can inhibit cross-examination’ because a ‘failed effort to impeach the witness as expert may effectively enhance his credibility as a fact witness.’ Id. (internal quotation marks omitted). Third, ‘there is an increased danger that the expert testimony will stray from applying reliable methodology and convey to the jury the witness’s sweeping conclusions about appellants’ activities.’ Id. (internal quotation marks omitted). Fourth, there is a danger that some ‘jurors will find it difficult to discern whether the witness is relying properly on his general experience and reliable methodology, or improperly on what he has learned of the case.’” Id.

The potential problems from dual testimony were avoided in the case by the clear separation of the percipient testimony (in the first “phase”) and the expert testimony (in the second “phase”). The jury was also given a jury instruction reminding them that they were the finders of fact. As the Ninth Circuit noted:

“When the district court divided Agent Solek’s testimony into two separate phases it avoided blurring the distinction between Agent Solek’s distinct role as a lay witness and his role as an expert witness. Not only were these two phases separated temporally by a sidebar, but when the prosecutor began the expert phase, she stated, ‘Agent Solek, I’d like to shift gears here a little bit and talk about some of your education, professional training, and law enforcement experience.’ Accordingly, we find that the concerns we expressed in Freeman were avoided here and the district court did not exceed the permissible bounds of its discretion in admitting Agent Solek’s testimony.”

Anchrum, 590 F.3d at 804.

The circuit also rejected the defense claim that the agent violated FRE 704(b) by opining on the defendant’s intent during his expert testimony concerning the defendant’s “intent to possess the firearms ‘during and in relation to’ or ‘in furtherance of’ his drug trafficking crime.” The testimony was legitimate expert testimony concerning the modus operandi of drug dealers which included “the various reasons a hypothetical drug dealer would posses a firearm.” The testimony referred to “the second person point of view” (including references to “‘you,’ ‘you’re,’ and ‘your’ instead of ‘he,’ ‘he’s,’ and ‘his’”) and did not opine on the defendant’s intent

While it is not uncommon for a law enforcement witness to provide both lay and expert testimony, another practice is to use two witnesses, one to provide lay testimony concerning the facts of the case and another to provide expert testimony from a witness who was not involved in the case. When the same witness is used for dual testimony, the Ancrhum case provides a useful roadmap to compartmentalize the testimony.

Federal Rules of Evidence