Sizing Up The Defendant's Identity

Police officer could provide lay opinion testimony in defendant's cocaine distribution conspiracy trial that the "men's clothing he found in" a Maryland residence "believed to be Watson and [companion] Torres’s" during a warranted search "would approximately fit" the defendant, and women's clothing found there would "approximately fit" his companion, making it more likely that the premises where considerable drug paraphernalia was found, including cash from a controlled buy, was the defendant's (citing FRE 701 but providing no further analysis,) in United States v. Watson, __ F.3d __ (D.C. Cir. June 4, 2012) (No. 1:08-cr-00268-1)

An important requirement for admission of lay opinion evidence under FRE 701 is that the opinion testimony be "helpful" to the jury. Under this rubric, trial courts routinely admit lay opinion as to many common observations -- how a suspect looked, a person's stature, age range, skin color, or other distinguishing features. See e.g., Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239-240 (6th Cir. 2010) (trial judge erred by rejecting lay opinion testimony that the color of gem , noting that a "prototypical example” of admissible testimony under FRE 701 include “the appearance of persons or things, identity, the manner of conduct, competency of a person, degree of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences”); Personal Perception and Inference Lay Testimony Under FRE 701 (December 12, 2010 ). At the beginning of the month, the D.C. Circuit added to the list of observations that might be provided through lay testimony under FRE 701 -- relating to clothing size.

In the case, defendant Watson was arrested after one of his customers (Reed) arranged controlled buys from the defendant. When police finally arrested the defendant, they were finally able to search "a Maryland residence believed to be Watson and [companion] Torres's. Inside the residence they found, among other things, thousands of dollars in cash, firearms, a digital scale, plastic baggies, razor blades, luxury items, ten brand new Lazy–Boy massaging chairs and a “poster-sized picture” of Watson inside a closet; outside and in two garages at the residence they found a number of different vehicles (including a Hummer H–2, a Cadillac, a John Deere tractor, All–Terrain Vehicles and a golf cart) and various watercraft."

The defendant was convicted and on appeal he made a number of challenges, one of which alleged that the trial judge "erred in allowing ... a police officer who was not qualified as an expert witness, to offer ... that he found “cocaine residue” on various objects recovered from Watson's residence, including a cheese grater, digital scale and plastic baggies." Watson challenged this as improper opinion testimony, including testimony to the effect that in the search of the alleged residence the officers had found "(1) men's clothing ... in Watson and Torres's residence [that] would approximately fit Watson and women's clothing he found there would approximately fit Torres." The circuit disagreed with the defendant's view that the fit of clothing was not an appropriate subject of lay opinion. As briefly noted by the circuit in a footnote -- the officer's "testimony regarding the clothing sizes was proper lay opinion testimony." The circuit cited as authority FRE 701 as providing a firm foundation for the evidence as to clothing size.

The D.C. Circuit's assessment of lay testimony on clothing size or fit was presented with a minimal analysis. The evidence did not play a major role in the circuit's determination and it appeared only in a footnote. In addition, because the defense objection to this evidence arose only in the appeal, the circuit applied a plain error standard of review. to the question was not contemporaneous with its presentation at trilk was not a major n addition, it was also a result of

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