Four-Part Inquiry Governing Admission Of Lay Testimony On "Coded" Discussions

In racketeering trial involving illegal gambling schemes enforced by means of arson, admitting lay testimony by ATF special agent as to his understanding of defendants' "cryptic conversations," that had been intercepted, regarding the alleged gambling and arson schemes under FRE 701 because the trial court employed four factors in assessing coded language lay opinion, in United States v. Albertelli, __ F.3d __ (1st Cir. June 29, 2012) (Nos. 09–2213, 09–2478, 09–2606, 10–1214)

Last Tuesday, the Federal Evidence Blog presented a brief note on the First Circuit's recent assessment of the application of the crime-fraud exception to the attorney-client privilege. There was another noteworthy issue in the case which is the subject of today's blog essay. The issue concerns the prerequisites for admission of lay opinion testimony on the defendants' use of "coded" language, as well as the meaning of that language.

As explained in this blog's previous treatment of the Albertelli case, defendant Albertelli was tried with others, including his wife, with operating a racketeering conspiracy. The defendant's scheme involved "different flavors of continuing illegal gambling business-sports betting." One way that the scheme operated was by extorting legitimate local enterprises in the Boston region. One tool of choice for those who did not cooperate with the scheme was to subject their business to arson. The defendant was convicted after a lengthy trial. In his appeal the defendant cited as error that the trial judge had admitted the investigating agent's lay opinion testimony that the defendant's intercepted conversations with coconspirators in the scheme was conducted in coded language as well as the specific meaning of what was said in this coded language. For example, these coded statements and agent's lay opinion of what the coded language meant:

Lay Testimony On Meaning Of' "Coded Language"
of Co-conspirator's Intercepted Conversations

Intercepted "Coded" StatementLay Witnesses Opinion As To Its Meaning
Albertelli: “Just in case, you know, we want to go for a ride or something.” ”To make sure that they have an alibi in place.”
[Coconspirator] Gianelli: “Our way might be the only right way.” Referring to setting the [charged] fire [as way to enforce gambling scheme].
[Coconspirator] Gianelli: “How's the pizza?” Referring to Romeo's Pizza restaurant [One of the business victims of the charged crime].
[Coconspirator] Gianelli: “This kid probably tried to burn the fuckin' place down. That's what I'm thinking.” ”He's placing blame on [victim restaurant proprietor] Mark Colangelo.... They're strategizing about what their story would be.”
Albertelli, __ F.3d at __.


The First Circuit affirmed this admission of the agent's lay opinion of the allegedly coded language used by the members of the defendant's conspiracy. The circuit acknowledged that such testimony may "formally meet[ ] the requirements of Rule 701, being 'rationally based on [his] perception' of the conversations; “helpful” in the Rule 701 sense broadly understood; and yet not based on expert knowledge within the meaning of Rule 702. Albertelli, __ F.3d at __ (citing United States v. Santiago, 560 F.3d 62, 66 (1st Cir.2009).

Yet for the First Circuit, this technically lay testimony was different from other types of lay testimony. The circuit identified a number of "problems" with such lay testimony, including:

  • -that the testimony may effectively smuggle in inadmissible evidence (e.g., hearsay not within some exception and perhaps inadmissible under the Confrontation Clause);>
  • -that the witness may be drawing inferences that counsel could do but with advantages as to timing, repetition and the imprimatur of testifying as a law enforcement officer;
  • -that the witness may usurp the jury's function by effectively testifying as to guilt rather than merely providing building blocks for the jury to draw its own conclusion;
  • -that the witness may be unable to point to any rational basis for the interpretation offered or be doing nothing more than speculating; and
  • -that the witness may act as a summary witness without meeting the usual requirements.
Albertelli, __ F.3d at __ (footnote omitted)).

The circuit noted that the defendants' case posed a number of these problems because "[t]hese dangers, which are present in scenarios other than interpreting shielded or oblique language, vary (both in degree and kind) with the facts—as do the need for the testimony and the extent to which the witness' unique experience permits him to be helpful" as a lay opinion witness. What the court trial judge could do to minimize the problems involved such tools as "supervision by the judge, cautionary instructions, and above all cross-examination, which is more helpful as to some dangers than others. Where the witness can explain the basis for his specific interpretations, decisions in other circuits have upheld admission of such testimony by law enforcement officers, especially in organized crime and terrorism cases." Albertelli, __ F.3d at __ (footnote omitted)).

The circuit recounted how the trial judge employed these various tools to minimize the problems with the agent's lay testimony, which were few. First, there was a "clear" need for the opinion testimony; the lay testimony admitted the court ""interpretation, that "limited to conversations that were unclear." The judge was not hesitant to sustain objections to "speculative answers and gave a cautionary instruction at the end of the trial."

According to the circuit, the cross-examination in the case also reduced any dangers of lay testimony on the meaning of "coded" language: after understanding the basis of the opinion testimony was "opinions [which] were his own and that he was not purporting to represent collective knowledge," the defense "vigorously cross-examined" the witness "regarding their [the interpretation's] plausibility and bases, which resulted in concessions that certain opinions were not derived from his [witness's] arson expertise, as well as acknowledgments of alternative interpretations of several ambiguous statements. Where such alternatives can be offered, the plausibility of the witness' own position—unlike, say, that of a medical expert—is readily measured by the jury." Albertelli, __ F.3d at __.

In affirming the admission of the agent's lay testimony on the meaning of the coded language, the First Circuit outlined a general approach to such testimony as reflected in the defendant's case that could be employed by the trial courts:

Looking finally to future cases, we think that district judges faced with interpretive testimony typified by [officer witness]'s ought to start, as the trial judge did here, by considering whether the testimony is meaningfully helpful to the jury, compared to the traditional device of saving the interpretive inferences for counsel in closing argument, and whether limitations can sufficiently mitigate the dangers noted earlier. And, to the extent possible, such limitations ought to be identified.

Further, the witness should be prepared to explain the basis for any challenged interpretation and may not say only that it is based on “the totality of the investigation.” Unlike some lay opinions ( e.g., the car was going “fast”), an interpretation of a phrase or reference ought to be explicable, and dangers already adverted to lurk in one that cannot be explained. The trial judge may need in some cases to take proffers or allow cross-examination outside the presence of the jury.

Lastly, the basis relied upon for an interpretation must be one not unduly troubling to the trial judge because of apparent unreliability, undue prejudice, importation of inadmissible hearsay or some other circumstance that might make it unsuitable as an explanation. The variety of concerns and variations in cases makes it difficult to lay down rules and appropriate for wide discretion on the part of the trial judge reviewed only for the clearest abuse.
Albertelli, __ F.3d at __. This description can be distilled down to four factors that should be considered when assessing the admissibility of lay opinion testimony on coded language:

  1. whether the testimony was more helpful to the jury than alternate sources;
  2. whether the testimony is restricted to "mitigate the dangers" of lay testimony which have been identified by the circuit [see bulleted list of five items, above];
  3. whether the witness explains the basis for his challenged interpretation of the coding; and
  4. whether the "basis" for the lay opinion was "not unduly troubling to the trial judge because of apparent unreliability, undue prejudice, importation of inadmissible hearsay or some other circumstance."

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Federal Rules of Evidence
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