Dual Lay/Expert Law Enforcement Witness Testimony Admitted

In criminal RICO conspiracy trial, admitting percipient testimony by case agent as a lay witness under FRE 701 regarding the charged conspiracy and also admitting under FRE 702 the same agent's expert opinion testimony on prison gangs because the trial judge minimized the possibility of jury confusion with frequent instructions distinguishing the limited uses of expert vs. lay testimony, as well as the prosecutor's distinguishing the questions asked of the witness in his lay role and questions asked in his expert role, in United States v. Martinez, __ F.3d __ (9th Cir. June 22, 2011) (Nos. 08–50141, 42, 45, 47, 50, 51, 52)

In the Federal Evidence Blog's 2010 "Retrospective" on Ten Key Evidence Issues In 2010,we noted the difficulties the circuits experienced in evaluating the use of lay testimony when provided by the same witness, usually a law enforcement agent, who was qualified as an expert witness a criminal prosecution. A recent case of the Ninth Circuit suggests that some settlement on an approach to this thorny question.

In the case, defendants Martinez and others six other co-defendants were convicted in a criminal RICO conspiracy trial and sentenced to life imprisonment. Martinez was a leader (e.g., a "member") of the "Mexican Mafia," an ethnic organization that "became a presence" in prisons in California. Co-defendant Valenzuela was a "soldier" in the organization, and his simple responsibility for the entity was to "t[ake] orders" from his superiors in the organization's hierarchy, such as Martinez. According to the circuit, the "Mexican Mafia" was a "power in the prisons," specializing in "control of drug trafficking within and outside the prisons." The gang generally used violence, including murder, as an enforcement mechanism. The trial of the defendants involved their role in the murder of two individuals who made bogus claims of being members of the Mexican Mafia gang.

In challenging their conspiracy conviction, the defendants contended that the trial judge had admitted improper testimony by a witness. That witness was the "case agent" for the FBI - Special Agent Vitkosky - who testified in "a double capacity." As the case agent, he provided testimony "as a percipient witness of some events" in the investigation of the defendants. At the trial he also testified as an expert witness - he was "recognized by the court as an expert on the Mexican Mafia's coded communications and in that capacity was also a witness" at the defendants' trial.

As described by the circuit, Vitkosky's expert testimony concerned the interpretation of the "coded messages" used by the defendants. The circuit noted, however, that as the agent was serving as both an expert and lay witness in the same trial, the trial judge was particularly careful to instruct "the jury three times on the difference between percipient and expert testimony." In addition, the prosecutors as well were "nearly always exact in specifying" when they were asking for his Vitkosky's "testimony as an expert," and when it his testimony based on his percipient observations was required.

The defendants contended that the trial court erred by allowing witness Vitkosky to testify in this "double capacity." The circuit considered this issue as settled. It noted that normally dual testimony by a law enforcement witness was highly questionable as it could readily confuse the jury:

In dicta we have pointed out the danger of confusion for the jury when a witness has such a dual role, but have held that the trial court has discretion to accept a witness in both capacities. The district court did not abuse its discretion when it admitted Vitkosky's testimony properly identified as percipient or as expert. If, in the course of thirty-five days of trial, there was testimony from him where the distinction was not made clear, the defendants have not identified any testimony harmful to any of them.

The defendants do object to Vitkosky's testimony that “to drink a cup of tea” meant to be killed. As an expert, he [Agent Vitkosky] explained that he had reached this conclusion from his inquiries among former members of the Mexican Mafia. They had told him that a “cup of tea” was a common term in the Mexican Mafia for approval of a “murder/assault.” Vitkosky then interpreted “cup of tea” as short for “cup of green tea” and stated that so interpreted it equaled “green light.”

Vitkosky's testimony consisted in two parts: (1) the meaning of an expression used in the organization and (2) the derivation of the meaning. As the defense pointed out, his testimony as to the derivation made little sense. There are red, white, and black teas as well as green. But Vitkosky's guess as to the phrase's derivation did not destroy his testimony that the phrase was part of the argot of the mob and that as used by its members it could mean acts of ultimate violence. It was proper for the jury to hear and assess the strength of his testimony.
Martinez, __ F.3d at __ (citing United States v. Freeman, 498 F.3d 893, 902–04 (9th Cir. 2007) (identifying five potential problems in the use of a dual lay and expert law enforcement witness, as "First, by qualifying as an expert, the witness attains unmerited credibility when testifying about factual matters from first-hand knowledge. Second, it is possible 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. Third, when the prosecution uses a case agent as an expert, 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, deviating from the strictures of Rules 403 and 702. Fourth, a case agent testifying as an expert may lead to juror confusion because [s]ome 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. Finally, “when a case agent/expert strays from the scope of his expertise, he may improperly rely upon and convey hearsay evidence. In doing so, the witness may also run afoul of the Sixth Amendment Confrontation Clause.")).


In essence, the Ninth Circuit in Martinez applied all of these factors described in Freeman. The circuit's found the jury confusion factor (Factor #4) and the first (Factor #1) unmerited lay credibility factors satisfied: The jury was not confused in light of the court's contemporaneous limiting instructions and careful delineation of expert testimony versus lay testimony. The cross-examination that occurred was not impaired as the defendants could point to no particular way in which the dual testimony harmed their interests. In addition, the robust nature of the cross-examination that actually occurred (Factor #2), as well as the inability of the defendants to cite any errors in the dual witness's testimony under FRE 403 and FRE 702 Factors (Factor #3) and the lack of any showing that the witness' expert testimony was infected inadmissible hearsay evidence (Factor #5), further supported the soundness of the trial court's decision to allow the law enforcement witness testify at trial in a dual capacity.

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