Another Recent Examination Of The Occasional “Fine” Distinction Between Lay & Expert Testimony

In trial for impersonating a federal officer, admitting lay testimony by a state police sergeant witness about the legal authority of those who have private detective and handgun permits, based on the witness’s personal experience as head of the state agency that issued these permits, in United States v. Roe, 606 F.3d 180 (4th Cir. May 27, 2010) (No. 08-5203)

FRE 701 concerning lay witnesses was amended in 2000 by excluding from its scope any testimony “based on scientific, technical or other specialized knowledge.” This testimony was to be considered as expert evidence under FRE 702. Despite this effort to make testimony fit under one rule or the other, often situations arise where courts and counsel puzzle over which rule covers particular testimony. In a recent case, the Fourth Circuit looked again at the distinction between lay and expert testimony, noting that it “is a fine one” and “not easy to draw.

In the case, defendant Roe was an employee of a private contractor of the National Aeronautics and Space Administration (NASA) at its Goodard Space Center in Texas. In that role he was authorized to make arrests only at the Center. The defendant’s legal problems started when he tried to initiate a traffic stop while driving on a national park roadway. After the defendant was apprehended by authorities based on his driving, he was charged with impersonating a federal officer when he produced bogus federal identification.

At the defendant’s trial on impersonating a federal officer, the defendant objected to admission of testimony by one witness (Sergeant Russel) as to the legal authority of one who has a private detective permit and a handgun permit. This witness was with the Maryland State Police Licensing Division. He testified about items recovered from the defendant’s wallet at the time of his arrest (a Maryland Permit for a Private Investigator and a Permit for a hidden weapon). The witness explained that he was with the Licensing Division (which regulated handgun permits as well as security guards and private detectives in Maryland). “Sergeant Russell testified that private detective and security guard certifications did not provide a person with arrest authority or constitute the holder a police officer. He also testified that a handgun permit did not authorize the holder to make arrests.” The defendant was convicted and as part of his appeal, he raised the argument that admission of the Russell testimony was erroneous because it should have been treated as expert evidence rather than lay. Roe, 606 F.3d at 183.

The Fourth Circuit rejected this claim that the sergeant’s testimony was expert testimony. It acknowledged that it had “previously recognized that the distinction between lay and expert testimony ‘is a fine one’ and ‘not easy to draw.‘” This resulted in a “tension” because the “‘critical distinction between Rule 701 and Rule 702 testimony is that an expert witness must possess some specialized knowledge or skill or education that is not in possession of the jurors, we also have acknowledged that the subject matter of Rule 702 testimony need not be arcane or even especially difficult to comprehend. The interpretive waters are muddier still: while lay opinion testimony must be based on personal knowledge, expert opinions may also be based on first hand observation and experience.‘” Roe, 606 F.3d at 185 (quoting United States v. Perkins, 470 F.3d 150, 155-56 (4th Cir. 2006) (internal quotation marks omitted)).

The circuit reasoned:

Having reviewed Sergeant Russell’s testimony, we conclude the district court did not err in admitting it as lay testimony. Sergeant Russell was in charge of the unit that issues handgun carry permits, as well as security guard and private detective certifications in Maryland. He was qualified to testify as to the requirements for getting such permits and certifications and to state what possessing those permits permitted an individual to do based on his personal knowledge acquired in that capacity. Such knowledge was not “specialized knowledge” in the Rule 702 sense, and does not constitute expert testimony. Instead, it falls under Rule 701’s description of lay testimony, being ‘rationally based on the perception of the witness’ and helpful to the jury’s ‘determination of a fact in issue.’ Accordingly, Roe’s challenge to the admission of this testimony lacks merit.

Roe, 606 F.3d at 186 (citing MCI Telecommunications Corp. v. Wanzer, 897 F.2d 703, 706 (4th Cir.1990) (bookkeeper’s “testifying on the basis of records kept by her personally under her control, and her projection of profits under the lease as prepared by her was predicated on the personal knowledge and perception” and as such constituted lay testimony whose identification as an expert witness was not required).

Most other circuits have had to face the problem of purported expert testimony that should be given as lay testimony or vice versa. The same witness can give both expert and lay testimony. See, e.g., United States v. Freeman, 498 F.3d 893, 904–06 (9th Cir. 2007) (detective could testify both as expert interpreting coded drug jargon, on basis of information acquired prior to investigation, and as lay witness interpreting uncoded conversations; there are risks in this situation, as expert receives “unmerited credibility” in giving lay testimony, and was allowed to give opinions on meaning of words and conversations even when testimony was “speculative or unnecessarily repetitive,” and “blurred distinction” between roles of witness as lay person and as expert “may have allowed him to rely upon and convey inadmissible hearsay”; but errors were harmless).

Federal Rules of Evidence
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