Placing The Dual Expert/Lay Witness In Perspective

In drug conspiracy trial, in admitting dual lay and expert testimony of case agent on the meaning of drug codes, danger of undue prejudice through juror confusion was minimized by an appropriate jury instruction and the witness explaining the basis for his testimony, in United States v. Moreland, _ F.3d _ (7th Cir. Dec. 3, 2012) (Nos. 11–2546, 11–2552, 11–2632, 11–2633, 11–2696, 11–3146, 11–3319, 11–3321, 11–3367)

The Federal Evidence Blog has noted a number of cases regarding the care that should be used in presenting a witness whose testimony shares qualities of FRE 702 expert testimony with other qualities of FRE 701 lay testimony. One circuit particularly notable in warning about the use of dual law enforcement expert-lay witnesses is the Seventh Circuit. See Seventh Circuit Warns About Using Dual Fact / Expert Law Enforcement Testimony; Overcoming Potential Prejudice In The Dual Fact/Expert Law Enforcement Witness. The Seventh Circuit recently examined the limits on the use of this dual testimony.

In the case, nine defendants were jointly tried on drug conspiracy charges. On appeal, one of the issues raised involved the presentation of the testimony of a law enforcement officer as both a lay and expert witness. Specifically,

The witness, who was the DEA agent in charge of the investigation of the [charged] conspiracy, was called to testify about the meaning of code words used in intercepted phone conversations of the defendants—code words that he had learned the meaning of in the course of investigating this very drug conspiracy and code words commonly used in the drug trade that he had learned the meaning of in other investigations. About the first type of code word he was testifying from personal knowledge obtained in the investigation, and thus as a lay witness, while about the second type he was testifying as an expert on drug codes, his expertise having derived from his involvement in other drug investigations. From the investigation in this case he had learned that the conspirators called methamphetamine “blue” (the particular methamphetamine distributed by this conspiracy was tinted blue) and marijuana “green” or “scenery.” But it was from past investigations that he had learned that a “zipper” is an ounce of methamphetamine and that “stepped on” means that a drug was cut with adulterants to increase its weight and therefore (if consumers don’t realize that its weight is attributable to adulterants) its price. The agent testified about “zipper” and “stepped on” as an expert witness, but as a lay witness about the other code words used by the conspirators in this case.

Moreland, _ F.3d at _ (citations omitted).

The Seventh Circuit did not find this witness's testimony particularly problematic. It acknowledged that it had previously warned of the danger that a jury "might be smitten by an expert’s ‘aura of special reliability’ and therefore give his factual testimony undue weight.” Moreland, _ F.3d at _ (citing United States v. York, 572 F.3d 415, 425 (7th Cir. 2008); United States v. Upton, 512 F.3d 394, 401 (7th Cir. 2008); United States v. Flores-De-Jesus, 569 F.3d 8, 20-21 (1st Cir. 2009)). But the circuit failed to see this as a significant risk in the defendants' trial - in large part because the dangers of a dual expert-lay witness was not a matter of mere technicalities. Rather, in the defendants' case, this evidence "was no prejudicial" than had prosecutor asked a lay "eyewitness whether he has good vision." Moreland, _ F.3d at _.

Being too technical in clarifying how the witness's role as lay witness differed from his role as an expert did "little to stem the risks associated with dual-role witnesses.” As explained by the Seventh Circuit:

Telling the jury that a witness is both a lay witness and an expert witness and will be alternating between the two roles is potentially confusing—and unnecessary. The lawyer examining the witness need only ask him the basis for his answer to a question, and the witness will then explain whether it was his investigation of the defendants’ conspiracy or his general experience in decoding drug code. That tells the jury what it needs to know in order to determine how much weight to give the testimony and tells opposing counsel what he needs to know in order to be able to cross-examine the witness effectively. Using terms like “lay witness” and “expert witness” and trying to explain to the jury the difference between the two types of witness is inessential and, it seems to us, ill advised.

Moreland, _ F.3d at _ (quoting United States v. York, 572 F.3d 415, 426 (7th Cir. 2008))


For the circuit, it was important that the jury know the basis for the testimony:

The lawyer examining the witness need only ask him the basis for his answer to a question, and the witness will then explain whether it was his investigation of the defendants’ conspiracy or his general experience in decoding drug code. That tells the jury what it needs to know in order to determine how much weight to give the testimony and tells opposing counsel what he needs to know in order to be able to cross-examine the witness effectively.

Moreland, _ F.3d at _.

Further, the trial court's limiting instruction to the jury about the dual witness that was crucial. The limiting instruction "allow[ed] the prosecutor to elicit the fact that the agent had been determined in previous trials to be an expert on drug codes," yet the instruction explained to the jury not to depend on labels. The circuit specifically approved the trial judge explaining to the jury when the dual witness was called to testify that

when you hear a witness give an opinion about matters requiring special knowledge or skill, you should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean you are required to accept it. Give the testimony whatever weight you think it deserves, consider the reasons for the opinion, the witness’s qualifications, and all of the other evidence in the case.

Moreland, _ F.3d at _. This was sufficient to alleviate dangers of unfair prejudice from the presentation of a dual witness to the jury. In noting this, the circuit seemed to suggest that a crucial part of presenting a dual witness at trial is the scope of the limiting instructions the judge might provide regarding the witness's testimony. While caution must be used in presenting dual lay and expert testimony, the case highlights that sufficient steps can be taken to minimize the risks of prejudice.

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