On The "Borderline" Between Admissible And Inadmissible "Dual Witness" Testimony

In weapon and drug possession trial, noting specific concerns in admitting agent's dual fact and expert testimony; Seventh Circuit, suggests that while the trial court pursued some measures, it could have taken more active "steps ... to ensure that there is a clearer demarcation when an agent testifies in a dual capacity," so that the jurors can "recogniz[e] the difference" between the fact and expert testimony, although it was a "borderline case," even if erroneous it was not plain error, in United States v. Christian, 673 F.3d 702 (7th Cir. March 12, 2012) (No. 11-3001)

Prior Federal Evidence Blog posts have explored the difficulties of presenting a law enforcement witness as both an expert witness and as a fact witness in the same trial. Among the circuits, the Seventh Circuit has considered the conditions under which dual testimony should or should not be allowed as confusing to the jury. In a recent case the Seventh Circuit discussed a "borderline" case in which the trial highlighted some safeguards a trial court may employ in permitting dual testimony. On the facts, while more could have been done, the use of the dual fact/expert witness at most was harmless error.

In the case, defendant Christian was convicted after a jury trial of being a felon in possession of a firearm, a user in possession of a firearm, and for possession of marijuana and cocaine base. In appealing evidentiary decisions made by the trial judge, the defendant cited as error the admission of testimony of FBI Special Agent Manns, who had apprehended the defendant, and "testif[ied] as both expert and fact winess[ ] without taking precautions to separate and distinguish for the jury the dual nature of the[ ] testimony." Christian, 673 F.3d at 704.

While the circuit concluded that the trial court did err, the error was harmless and not reversible. This was a necessary conclusion because the defendant never raised the issue at trial, so the claim was reviewed for plain error. The defendant failed to indicate how the error made a difference in the case since the evidence that would have been excluded by preventing the agent Mann's testimony still came in without objection during the testimony of other witnesses.

However, the circuit did note that the defendant had presented a "borderline case." Christian. 673 F.3d at 714. The circuit reviewed prior cases dealing with the "dual witness" problem -- when both "expert and fact testimony" of a law enforcement agent are "blended," resulting in "an unfair bolstering" of the dual witness's "fact testimony." This happens when it is likely that the jury may attribute an expert's "aura of special reliability" to the quality of the dual witness's fact testimony. Christian, 673 F.3d at 710. (citing United States v. Upton, 512 F.3d 394, 401 (7th Cir. 2008) (“Experts famously possess an ‘aura of special reliability’ surrounding their testimony. And it is possible that the glow from this halo may extend to an expert witness's fact testimony as well, swaying the jury by virtue of his perceived expertise rather than the logical force of his testimony.” (internal citation omitted)).

The Seventh Circuit found the defendant's argument "borderline" because the trial judge did employ a variety of safeguards to try to distinguish the witness's expert from his fact testimony before the jury. The problem was that the safeguards the trial court employed "could have been better" to deter the risk of jury confusion. The panel did acknowledge that the trial courts in the Seventh Circuit were required to utilize some "safeguards" against jury confusion about the dual witness.

Among the measures recommended by the circuit to obviate jury confusion on this issue was for the trial judge to:

take some precautions to ensure the jury understands its function in evaluating this evidence. The jury needs to know when an agent is testifying as an expert and when he is testifying as a fact witness.” The “dual testimony” situation “places an especially heavy burden on the district court to ensure that the jury understood its function in evaluating the evidence,” particularly where the conduct at question may appear innocent. . To take the necessary precautions, the court can give an appropriate cautionary instruction and require examination of the witness in such a way as to make clear when the witness is testifying to fact and when he is offering his opinion as an expert. Other precautions include the government establishing the proper foundation for the witness's expert opinions and the district court allowing rigorous cross-examination.
Christian. 673 F.3d at 712-13 (citing United States v. York, 572 F.3d 415, 425 (7th Cir. July 15, 2009) (07-2032) (internal citations omitted); United States v.Farmer, 543 F.3d 363, 370 (7th Cir. 2008)); see Overcoming Potential Prejudice In The Dual Fact/Expert Law Enforcement Witness (on York case); Problem Of Dual Expert and Fact Law Enforcement Testimony Avoided By Steps Taken In Drug Trial" (on Farmer case).

The circuit acknowledged that the defendant's case:

has similarities to both York and Farmer. As in Farmer, at the close of the evidence, the district court gave the standard cautionary instruction for opinion testimony requiring special knowledge or skill. Further, many of the questions eliciting Agent Manns' expert testimony were prefaced with phrases akin to “in your experience,” signaling to the jury when he was relying on his expertise and minimizing confusion over his dual role. The government also properly qualified Agent Manns as an expert and the defendant was not limited in his cross-examination. As in York, though, the district court did not explain Agent Manns' dual roles to the jury, there was significant blending between his fact and expert witness testimony, and the cautionary instruction was not given when he testified nor was it specific to dual testimony.
Christian. 673 F.3d at 714.

‏ However, the circuit did not need to resolve whether the court had erred in its reception of the agent's testimony. As review was for plain error, any error in this was not reversible error:

given that the safeguards taken (although they could have been better) helped alleviate the risk of jury confusion, we do not find a miscarriage of justice in the blending of dual testimony. But we would be remiss not to remind district courts that additional steps should be taken to ensure that there is a clearer demarcation when an agent testifies in a dual capacity. Even more importantly, prosecutors should be alert to situations where dual testimony is likely and provide adequate forewarning as well as structure to their examinations so the court can assist jurors in recognizing the difference between fact and expert testimony.
Christian. 673 F.3d at 714.

The Christian case highlights the importance of employing sufficient safeguards in using dual fact and expert law enforcement testimony. The case also underscores the need to preserve an objection at trial.

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