Circuit Consensus: Safeguards To Admit Dual Fact And Expert Law Enforcement Witness Testimony

In drug distribution conspiracy case, Fourth Circuit finds no plain error in admitting expert testimony of police officer concerning drug trafficking methods (including the use of code words) and fact testimony on his observations and the defendant’s actions (weather at time of offense and particular phone conversation intercepted at that time) as the defense was unable to show any jury confusion that affected the trial’s outcome, in United States v. Baptiste, 596 F.3d 214 (4th Cir. Feb. 26, 2010) (No. 07-4493)

Previously the Federal Evidence Blog noted some special problems that can arise where a law enforcement witness testifies as both a fact and expert witness at trial. See Dual Fact and Expert Law Enforcement Witness Issues. A recent Fourth Circuit case identified a circuit consensus on some of the steps that may be taken to ameliorate problems in admitting this type of testimony, citing recent Sixth and Seventh Circuit cases. However, the defendant’s case was resolved under a plain error standard of review and the circuit concluded that the defendant showed no plain error resulted from the dual testimony.

In the case, defendant Baptiste was charged with conspiracy to distribute and with possession with intent to distribute cocaine. Drug task force officers in Maryland conducted authorized wiretaps of several drug targets and from these intercepts learned of the activities of the defendant to supply “kilogram-quantity cocaine” to others in the conspiracy. At the defendant’s trial the evidence presented against him consisted of the defendant’s alleged confession to supplying cocaine to others and “testimony regarding the investigation of the conspiracy, including descriptions of the surveillance conducted and analyses of numerous wiretapped telephone calls among the coconspirators. To elicit the purpose of the wiretaps and the context of the calls themselves, the government proffered Detective Kenneth Russell, who had been the lead investigator in the case, as an expert witness.” Baptiste, 596 F.3d at 218.

As noted by the circuit, the officer easily qualified as an expert witness without challenge by the defendant. The trial judge admitted the officer’s testimony as an expert and provided a cautionary instruction to the jury. That instruction warned that the officer would be able to offer opinion testimony “with respect to the method and means of drug packaging and drug distribution as well as the use of slang terms in terms of drug explanations.” However, at trial the officer also provided fact, rather than opinion, testimony. Specifically:

“[I]n the middle of Russell’s expert testimony regarding a[n intercepted] call, the government attorney asked him, ‘By the way, what was the weather like that night?,’ to which Russell responded ‘It was freezing rain.’”

“Russell agreed with counsel that a call that had just been played to the jury was a ‘sort of [“]where are you[”] call,’ and then proceeded to testify about the surveillance related to that call. In that call, Larry Brown, one of Baptiste’s coconspirators, asked Baptiste to pick him up, Baptiste asked Brown to confirm where he was, and Brown responded that he was at the Shop Rite store.” Baptiste, 596 F.3d at 225.

After his conviction, the defendant appealed contending that the trial judge erred in admitting the expert witness’s fact testimony without using “safeguards to prevent jury confusion regarding Russell’s dual role as an expert and fact witness. As a result … the jury gave undue weight to Russell’s factual testimony and was confused as to when his testimony was based on his expert opinion and when it was based on his factual recollections of the investigation.” The panel noted this presented an open issue for the Fourth Circuit: “We have yet to consider the precise circumstance presented here, namely, in which lay and expert witness testimony is presented simultaneously.” Baptiste, 596 F.3d at 224.

The Fourth Circuit identified the trend of how other circuits have treated this issue:

“Those circuits that have considered simultaneous dual-role testimony have generally found it to be properly admitted so long as the court implements adequate safeguards to prevent juror confusion or jurors giving undue weight to the lay testimony. The Seventh Circuit case of United States v. Farmer, 543 F.3d 363 (7th Cir. 2008) and the Sixth Circuit case of United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006) are illustrative of the lines that courts have drawn regarding adequate safeguards.

“The defendant in Farmer was charged with drug offenses. At trial, a federal agent testified both to the alleged conduct and to the meaning of code words in drug distribution. He gave both lay and expert testimony during the same trip to the witness stand, following a pattern much like that followed at Baptiste’s trial.

“The Farmer court noted four safeguards that the district court implemented with regard to the agent’s dual-role testimony. First, the district court gave a cautionary instruction to the jury, reminding the jury that it could “give the testimony whatever weight you think it deserves.” Farmer, 543 F.3d at 371 (quotation marks and alterations omitted). Second, defense counsel cross-examined the agent about his expert opinion, “which further clarified the testimonial capacities for the jury.” Id. Third, the district court required the government to establish a proper foundation for the witness’s expertise. Id. at 370-71. Finally, “[t]he government … prefaced [the agent’s] expert testimony by asking him to interpret the coded language’s meaning ‘based on [his] expertise.’” Id. at 371 (last alteration in original). Without noting which safeguard was most important, the Seventh Circuit concluded that the district court had “adequately alleviated” any potential concerns regarding juror confusion. Id .

“By contrast, the Sixth Circuit found safeguards to be inadequate in Lopez-Medina. The only safeguard provided at trial in Lopez-Medina was a cautionary instruction to the jury indicating that the government agent’s testimony was not entitled to any greater weight because of the agent’s dual role and that defense counsel could attack the agent’s credibility. 461 F.3d at 744. On review, the Sixth Circuit also noted that the agent’s testimony “lacked any clear demarcation between expert and fact witness roles .” Id.

See also United States v. Thomas, 74 F.3d 683 (6th Cir. 1996) (noting “both the district court and the prosecutor should take care to assure that the jury is informed of the dual roles of a law enforcement officer as a fact witness and an expert witness, so that the jury can give proper weight to each type of testimony”), abrogated on other grounds by General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). After canvassing the safeguards used in the Sixth and Seventh Circuits, the Fourth Circuit considered the steps taken in the case:

“The safeguards implemented at Baptiste’s trial fall somewhere between Farmer and Lopez-Medina. On one hand, the district court ensured that the government laid the foundation for Russell’s expert testimony. The court also instructed the jury regarding Russell’s testimony, saying that “it’s for you to accept, reject or whatever in terms of whether you accept that testimony or not,” and noted that defense counsel could challenge Russell’s opinions. However, the government’s questioning failed to demarcate between lay and expert testimony, a consideration that both Farmer and Lopez-Medina weighed heavily. See Farmer, 543 F.3d at 371; Lopez-Medina, 461 F.3d at 744. Furthermore, defense counsel’s cross-examination of Russell did little to contribute to the distinction between lay and expert testimony. Thus, we believe that the district court could have done more to ensure that Russell’s lay and expert testimony were demarcated more clearly in order to prevent juror confusion and to prevent jurors from giving undue weight to Russell’s lay testimony.”

Baptiste, 596 F.3d at 225.

While more could have been done, the failure to do so in the defendant’s case was not plain error, since no contemporaneous objection had been raised at trial. The circuit noted that the expert witness’s fact testimony about the weather failed to “confuse the jury in such a way as to affect Baptiste’s substantial rights.” Similarly, the witness’s testimony about the surveillance call was “simply factual background preceding his description about the surveillance surrounding the call” and so it failed to “confuse the jury and prejudice Baptiste.” Baptiste, 596 F.3d at 226.

Had it not been for its use of the broader standard of review, the circuit noted that the trial court “should take steps to ensure that there is a clear demarcation in the jury’s mind between a witness’s lay and expert roles.” The circuit identified three ways that this might be accomplished:

1. By cautionary warnings or instructions
2. By requiring the witness to take separate trips to the stand in each capacity (as an expert witness and separately as a fact witness), or
3. By ensuring that counsel makes clear when he is eliciting lay versus expert testimony.

Ultimately, explained the Fourth Circuit, the test of whether a trial court abused its discretion in allowing dual expert-fact testimony boils down to whether the trial court ensured that jurors were “made to understand that they may not give the witness’s lay testimony additional weight simply because of his dual-role as an expert.” Baptiste, 596 F.3d at 225 n.9.

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