Satisfying Personal Knowledge Requirements In FRE 602, FRE 701 and The Hearsay Rule

In crack/heroin conspiracy trial, admitting testimony of defendant's associate about the place that the defendant hid the drugs in the associate's car; although the associate's testimony that she knew the defendant and his co-conspirator used a particular place in the car for storing drugs was not based on “seeing it that night in that car” on the night in question, it was lay opinion based on sufficient personal knowledge that she knew of hiding location because she had seen the defendant and his co-conspirator hide drugs there prior to night of challenged traffic stop, in United States v. Faulkner, __ F.3d __ (8th Cir. Feb. 25, 2011) (No. 10-1271)

Unlike the expert witness who, under FRE 702, may offer opinions based on "reliable principles and methods," which the witness applied to the "facts of the case," the scope of lay testimony excludes "specialized knowledge" as long as it is "rationally based on the perception of the witness." FRE 701 (a) & (c); FRE 702(2) & (3). But what is sufficient "personal information" that can underlie a lay opinion? In a recent case, the Eighth Circuit considered the sufficiency of the basis for a lay opinion by the owner of the car searched in a case in which police found the drugs the defendant and conspirators hid in the glove compartment of the car.

In the case, defendant Faulkner was charged in a heroin conspiracy that was a "contributing factor" in the death of a third party. The defendant was arrested on an outstanding warrant after a traffic stop in which, after finbding a large anount of cash on his person, officers used a drug dog who "sniffed the vehicle, and alerted officers to the presence of controlled substances" which officers found in "a hiding place behind the glove compartment." Faulkner, __ F.3d at __.

At defendant's trial, he challenged several statements made by his girlfriend (Debaun) who had been in the car on the night of the traffic stop. Specifically he objected to her testimony about her work delivering heroin on the part of the charged conspirators, and that he had a special "hiding place" for drugs in the car used that night. After his conviction, the defendant challenged the admission of the following as improper testimony:

Excerpt I:
Testimony Of Associate Debaun About Delivering Heroin To CoConspirators

Q:
Did you get any money for delivering-did [Watson] give you any money?
A:
Yes.
Q:
How much?
A:
I believe it was $80.
Q:
Could it have been more than that?
A:
Yes.
Q:
What did you do with that money?
A:
I left it in the apartment.
Q:
Who got it?
[Faulkner's Counsel]:
Objection. Lack of foundation.
[Court]:
Overruled. Answer the question, if you know.
[Debaun]:
I believe James [Faulkner] did.
Q:
Why do you believe that?
A:
He had called me and asked me where I had put it and I told him where I put it.
Faulkner, __ F.3d at __.

The defendant claimed there was "no foundation for her testimony that Faulkner retrieved the money and cites Federal Rule of Evidence 602 for the proposition that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Faulkner, __ F.3d at __. The circuit declined to address this contention and found it admissible on the basis of it being proper lay opinion testimony. According to the circuit:

Rule 701 states that a witness not testifying as an expert may offer opinion testimony so long as the testimony is “rationally based on the perception of the witness.” Fed.R.Evid. 701(a). ‘Personal knowledge or perceptions based on experience’ is sufficient foundation for lay opinion testimony. Debaun's testimony was rationally based on her perception. Debaun made it clear in her testimony that she merely 'believe[d]' that Faulkner took the money and even explained why she believed that. If the jury did not find her belief credible because she did not actually see Faulkner take the money, the jury was free to disregard the testimony. Therefore, the district court did not abuse its discretion in admitting this testimony.
Faulkner, __ F.3d at __ (quoting United States v. Smith, 591 F.3d 974, 982 (8th Cir. 2010) (quoting In re Air Crash at Little Rock Arkansas on June 1, 1999, 291 F.3d 503, 515-16 (8th Cir.), cert. denied, 537 U.S. 974 (2002)).


Nor was the circuit any more persuaded by the defendant's other objection to the witness's testimony as lacking a sufficient foundation. According to the Circuit, the defendant objected to admission of the following testimony by the associate:

Excerpt II:
Testimony Of Associate Debaun That Defendant Contended Was Hearsay

Q:
What do you know about how that hiding place came to be? Wasn't this your car?
A:
Yes.
Q:
And you had just owned that car you said for a few days?
A:
Yes.
Q:
Was that hiding place there when you bought the car?
A:
I'm not understanding what-
Q:
When you bought the car did you know there was a hiding place there behind the glove box or in the glove box?
A:
No.
Q:
But sometime in the week before Halloween you saw them using this glove box as a place to store drugs?
A:
No.
Q:
Tell us what you mean then.
A:
I just know that from reading paperwork. I don't know from seeing it that night in that car.
Faulkner, __ F.3d at __.


The circuit noted the defendant's contention that this testimony was hearsay. The defendant argued that the trial court should not have admitted the testimony - but the circuit was puzzled, noting that he failed to "clearly explain why it was inadmissible. "Presumably," ventured the Eighth Circuit, "Faulkner believes that the hearsay was Debaun's testimony that she knew Faulkner and Harrington were using the hiding place to store drugs 'from reading paperwork' and not 'from seeing it that night in that car.'” Faulkner, __ F.3d at __. None the less, the circuit rejected this challenge to the foundation of the testimony. "Just prior to the testimony at issue," the circuit noted that the following testimony was received by the court:

Excerpt III:
Testimony Of Associate Debaun Regarding Previous Occasions

Q:
You say the police found drugs in the car [on the night of October 31]?
A:
Yes.
Q:
Do you know where the drugs were found?
A:
In the glove box.
Q:
What do you know about that hiding place?
A:
I'd seen them put drugs there before.
Faulkner, __ F.3d at __.

Although the witness's answer to counsel's questions in Excerpt II may have been unartful, it did not undermine the soundness of the testimony. Considering this excerpt under a plain error standard because the defendant failed to object at the time, the circuit looked at the testimony in context. It noted that just previous to the testimony in Excerpt II, the witness had testified about having "seen" the defendants "put the drugs" in the place where it was found by police during the traffic stop. The witness's testimony would be considered in its full context, rather than choosing any particular words or excerpts that seemed questionable in isolation. As a result of this reading, the circuit affirmed the conviction.


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