"Personal Knowledge" As Foundation For Lay Opinion Testimony Under FRE 701

In drug conspiracy prosecution, agent's testimony interpreting words which were "not typical drug code" in intercepted phone calls was inadmissible as lay opinion under FRE 701 as the agent did not demonstrate any personal knowledge of the calls (e.g., from participation in the wiretapping, or personal observation of activities discussed in the intercepted calls), in United States v. Johnson, __ F.3d __ (4th Cir. Aug. 16, 2010) (No. 08-5098)

FRE 701 was amended in 2000 to "eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." ACN 701 (2000). A recent Fourth Circuit case provides an instructive example of how the amended rule operates to keep out expert opinion dressed up as lay opinion testimony. Under the circumstances of the case, the error in admitting the expert opinion as lay testimony was not harmless.

In the case, defendant Johnson was identified during government wiretapping of a suspected drug dealer (Pickens) and he was ultimately indicted as one of the suppliers of the dealer's cocaine. At the defendant's trial, critical testimony was offered by DEA Agent Smith who

"was permitted to interpret four of the eight phone calls recorded between Pickens and Johnson during his testimony. After eliciting Agent Smith's credentials, which included eighteen years experience as a DEA agent, the government played excerpts of the various phone calls for the jury, while referring them to a transcript of the calls. The government's attorney would then refer Agent Smith to a particular phrase in the conversation and ask him to explain its meaning. For example: 'Special Agent Smith, close to the beginning of the call there is a line or there's a phrase that's used by Mr. Johnson, "I'm going to hit you and let you know what's happening.'“
Johnson, __ F.3d at __ .

The defendant objected to these questions and the judge had the prosecutor lay a foundation for the testimony. This revealed the witness had years of experience as a DEA agent (since 1990), participated in 10 other wiretaps, monitored over 100 informant calls as well as defendant debriefings (usually after conclusion of a wire tap), and his familiarity "with the street terms used [in defendant's wiretapped phone call with the co-conspirator] - and with the “street terms typically used by those involved in the drug trade." Johnson, __ F.3d at __ .

Despite the defendant's objections to the testimony, the trial judge admitted it and when the trial concluded, the defendant was convicted. On appeal, the defendant set forth an analysis with which the Fourth Circuit agreed: the agent's “testimony was erroneously admitted.... Because Agent Smith was not proffered as an expert, Johnson argues that his testimony was only admissible as lay opinion testimony. Yet, Johnson asserts that because Agent Smith's opinions regarding the calls were not based on his own perception, but rather on his experience and training, his testimony cannot be considered a lay opinion for purposes of Rule 701. We agree.” Johnson, __ F.3d at __ .

As the explicit wording of FRE 701 required the testimony be “rationally based on the perception of the witness” and “not based on scientific, technical or other specialized knowledge within the scope of Rule 702,” the circuit noted that:

“Here, we have exactly what Rule 701 forbids. The government called Agent Smith to testify regarding his interpretation of the wiretapped phone calls between Pickens and Johnson. In response to the defense's objection, the government elicited testimony on Smith's credentials and training, not his observations from the surveillance employed in this case. Furthermore, Agent Smith admitted that he did not participate in the surveillance during the investigation, but rather gleaned information from interviews with suspects and charged members of the conspiracy after listening to the phone calls. His post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701.”
Johnson, __ F.3d at __ .

The circuit acknowledged that “the line between lay opinion testimony under Rule 701 and expert testimony under Rule 702 is a fine one.” Johnson, __ F.3d at __ (citing United States v. Perkins, 470 F.3d 150, 155)). However, the circuit noted an Eighth Circuit analysis that was squarely on point:

“One of our sister circuits has considered this issue in an analogous case. [T]he Eighth Circuit found that the officer in question was erroneously permitted to give her opinion regarding the meaning of plain English words and phrases when she gave 'a narrative gloss that consisted almost entirely of her personal opinions of what the conversations meant.' Importantly, the Court found that the agent 'lacked firsthand knowledge of the matters about which she testified. Her opinions were based on her investigation after the fact, not on her perception of the facts.'”
Johnson, __ F.3d at __ (citing United States v. Peoples, 250 F.3d 630, 640-41 (8th Cir. 2001)).

According to the Fourth Circuit, the same would be true in the defendant's case because:

“Agent Smith did not testify to directly observing the surveillance or even listening to all of the relevant calls in question. Instead, much of his testimony was what should have been considered that of an expert, as he consistently supported his interpretations of the phone calls by referencing his experience as a DEA agent, the post-wiretap interviews he conducted, and statements made to him by co-defendants. None of this second-hand information qualifies as the foundational personal perception needed under Rule 701. As such, the district court abused its discretion in admitting Agent Smith's testimony as a lay witness under Rule 701. “
Johnson, __ F.3d at __ .

The circuit was equally dismissive of the government's arguments that, even if improperly admitted under FRE 701, that the testimony was admissible as expert testimony under FRE 702. The circuit disagreed. Because a full foundation was not laid for the witness's testimony as an expert, it was not admissible on that basis. In laying the foundation, the government presented clear evidence as to the agent's expertise, but it neglected to present any evidence as to the “methodology or guiding principles” the agent would use “to decode" the wiretapped phone calls. Accordingly, the trial court could enter no findings as to the reliability of the expert testimony and so the evidence could not be admitted on that basis. Finally, the circuit disagreed that even if improperly admitted, it was simply harmless error under FRE 103(a). Because the agent's interpretation of the code in the intercepted phone calls was the principal evidence that implicated the defendant in the charged conspiracy, it was not clear beyond a reasonable doubt that the defendant would have been convicted in the absence of the agent's testimony. There was insufficient evidence of the defendant's guilt that was independent of the agent's improper and erroneously-admitted testimony.


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