Sixth Circuit Joins Five Other Circuits In Limiting Agent Lay Testimony Interpreting Recorded Conversations

After an extensive investigation involving numerous intercepted recordings, to what extent can an agent provide opinion testimony about the meaning of the recordings? In reversing a conviction for a murder for hire conspiracy, the Sixth Circuit joins five other circuits (Second, Fourth, Eighth, Ninth and D.C.) in disallowing FRE 701 to permit an investigating officer to provide lay opinion testimony as to the meaning and significance of the recorded conversations of the conspirators; an insufficient foundation had been established to show the witness had first hand knowledge which would be “helpful in resolving issues” in the case; case highlights a split in the circuits, in United States v. Freeman, _ F.3d _ (6th Cir. Sept. 13, 2013) (No. 11-1798)

Law enforcement lay opinion testimony must meet the requirementss of FRE 701. The rule imposes three requirements: (1) the lay opinion must satisfy the "requirement of first-hand knowledge or observation," under FRE 701(a); (2) the lay opinion must be “helpful in resolving issues” in the case, under FRE 701(b); and (3) the testimony but "not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702" under FRE 701(c). The circuits have taken differing positions as to the satisfaction of the first two requirements in the context of law enforcement lay opinion testimony. The Sixth Circuit recently reviewed this authority and noted a division among the circuits as to admission of law enforcement lay opinion testimony.

Trial Proceedings: Lay Testimony On Intercepts Of Murder For Hire Scheme

In the case, defendant Freeman was convicted for his role in a conspiracy to commission a murder for hire. His prosecution was based on more than 23,000 telephone intercepted by the government. The prosecution contended that the intercepts showed that the defendant conspired with others to kill a person from whom one of the conspirators alleged had stolen $100,000 cash and $250,000 jewelry. The intercepted calls memorialized the conspirators' efforts to locate the thief, whom the defendant allegedly shot and killed in December 2005. The recorded conversations also covered conspirator efforts to arrange payment after the killing had been accomplished. In presenting the relevant recordings to the jury, the government called Case Agent Lucas to testify as a lay witness. Freeman, __ F.3d at __.

At trial, the agent provided "his personal impressions of the recorded conversations" of the conspirators. Apparently, the agent "interpreted the conversations as they were played. His testimony ranged from voice and nickname identifications to substantive interpretations of the meaning of the various statements." The defendant's objected to admitting this evidence, particularly as to "the meaning of specific code words and drug slang." Freeman, _ F.3d at _. An appreciable portion of the testimony was also in the nature of lay opinion testimony, based on the agent's personal knowledge of the investigation of the defendant. The jury convicted the defendant, who appealed contending that the admission of the agent's testimony violated FRE 701 and that no proper foundation had been established.

Sixth Circuit Unsettled Caselaw

The Sixth Circuit agreed that the testimony by the agent was erroneously admitted. It noted that Sixth Circuit case law "both published and unpublished, has tended to prohibit agents from interpreting phone calls as Agent Lucas did here under Rule 701." Freeman, _ F.3d at _ (citing United States v. Blakeley, 375 F. App'x 565, 570 (6th Cir. 2010) (noting that an agent's lay opinion testimony interpreting defendants' conversations was “likely improper” when the defense argued that the testimony “substituted [the agent's] interpretation of the conversations for the jury's interpretation”); United States v. White, 492 F.3d 380, 401-02 (6th Cir. 2007) (citing with approval two Second Circuit cases that excluded agent testimony interpreting wiretapped conversations under FRE 701); United States v. Ganier, 468 F.3d 920, 926 (6th Cir. 2006) (citing with approval an Eighth Circuit case that excluded agent testimony interpreting wiretaps under FRE 701)).

Circuit Split Identified

The Sixth Circuit noted that admissibility of an agent's interpretation of intercepted conversations was a cause for division among the circuits. It identified five circuits, the majority, "have held testimony inadmissible under circumstances similar to those presented" by defendant Freeman's appeal. The five circuits included:

Circuits Excluding Officer Lay Interpretation Testimony

  • Second Circuit: United States v. Garcia, 413 F.3d 201, 211 (2d Cir. 2005) (agent's lay testimony inadmissible where his opinion was not limited to his own personal observations, but rather were drawn from the totality of the investigation that he observed and from the reports by all agents participating in the investigation; "[T]his court has ... ruled it error to allow law enforcement witnesses to express opinions as to defendants' culpability based on the totality of information gathered in the course of their investigations.")
  • Fourth Circuit: United States v. Johnson, 617 F.3d 286, 292-93 (4th Cir. 2010) (agent's lay opinion testimony concerning his "interpretation of the wiretapped phone calls" was inadmissible since it was was based on his interviews with suspects after the intercept of the calls; "Johnson asserts that because Agent Smith's opinions regarding the [intercepted] calls were not based on his own perception, but rather on his experience and training, his testimony cannot be considered a lay opinion for purposes of Rule 701. We agree.")
  • Eighth Circuit: United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001) (agent's lay testimony inadmissible because the testimony was based entirely on after-the-fact review of the recorded conversations and there was no real first-hand perception of the facts; "When a law enforcement officer is not qualified as an expert by the court, her testimony is admissible as lay opinion only when the law enforcement officer is a participant in the conversation, has personal knowledge of the facts being related in the conversation, or observed the conversations as they occurred.")
  • Ninth Circuit: United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007) ("Although [agent] Shin's interpretation of ambiguous statements [in intercepted calls] was permissible" under FRE 701, “the interpretation of clear statements is not permissible, and is barred by the helpfulness requirement of both" FRE 701 and FRE 702.)
  • District of Columbia: United States v. Hampton, 718 F.3d 978, 982-83 (D.C.Cir. 2013) ("When an agent, particularly a case agent ... provides interpretations of recorded conversations based on his 'knowledge of the entire investigation,' 'the risk that he was testifying based upon information not before the jury, including hearsay, or at the least, that the jury would think he had knowledge beyond what was before them," so that its admission was erroneous)
Freeman, __ F.3d at __.

Circuits Admitting Officer Interpretation

The Sixth Circuit noted that four other circuits disagreed and more readily admitted such law enforcement lay opinon testimony. These circuits consisted of:

  • First Circuit: United States v. Albertelli, 687 F.3d 439, 446-47 (1st Cir. 2012) (police officer's "interpretations as lay witness opinions ... do not reflect a traditional reason for allowing lay opinions — that many observations people make 'every day in ordinary life cannot be adequately described in words confined to descriptions of observable phenomena.' Still, [officer] Kelsch's testimony undoubtedly had a potential to help the jury, which is all Rule 701 requires for lay opinion," and therefore there was no error in admitting it) (citation omitted)
  • Fifth Circuit: United States v. Miranda, 248 F.3d 434, 441 (5th Cir. 2001) (officer's "extensive participation in the investigation of this conspiracy, including surveillance, undercover purchases of drugs, debriefings of cooperating witnesses familiar with the drug negotiations of the defendants, and the monitoring and translating of intercepted telephone conversations, allowed him to form opinions concerning the meaning of certain code words used in this drug ring based on his personal perceptions. We therefore hold that Vega's testimony was admissible pursuant to Rule 701")
  • Seventh Circuit: United States v. Rollins, 544 F.3d 820, 831-32 (7th Cir. 2008) (agent's lay testimony about code words used in defendants' phone calls could be foundation for agent's lay testimony as it was rationally based on both his real-time listening of intercepted phone calls, his surveillance of the defendants, and his personal experience on the investigation; admitting "Agent McGarry's “impressions” testimony was rationally based on his first-hand perception of the intercepted phone calls about which he testified as well as his personal, extensive experience with this particular drug investigation. The agent listened to every intercepted conversation")
  • Eleventh Circuit: United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011) (agent's review of the transcripts of pre-recorded phone calls satisfied FRE 701; admitting agent's lay testimony "about the meanings of [defendant's] code words that he [the agent] learned through his examination of voluminous documents during a five-year investigation. His testimony was more similar to the lay testimony held admissible")
Freeman, __ F.3d at __.

Sixth Circuit Joins Majority

The Sixth Circuit explained why the officer's lay testimony should not have been omitted, emphasizing that such testimony had the potential to mislead the jury:

Agent Lucas drew conclusions from the phone calls the jury heard as well as from thousands of other phone calls and FBI evidence the jury had no access to. In doing so, he infringed upon the role of the jury to decide what to infer from the evidence, and instead told them what conclusions and inferences to draw based on his “fifteen years of experience.” ... We conclude that here the prosecution did not establish a proper foundation for Agent Lucas's testimony under Rule 701. As several circuits have recognized, there is a risk when an agent “provides interpretations of recorded conversations based on his knowledge of the entire investigation ... that he [is] testifying based upon information not before the jury, including hearsay, or at the least, that the jury [c]ould think he ha[s] knowledge beyond what [is] before them....
Freeman, __ F.3d at __ (citing Hampton, 718 F.3d at 982–83 (quoting Grinage, 390 F.3d at 750); and citing citing United States v. Dukagjini, 326 F.3d 45, 53–55 (2d Cir. 2003)) (internal quotation marks omitted)); see also Albertelli, 687 F.3d at 447 (recognizing that an agent's “testimony may effectively smuggle in inadmissible evidence,” that he may be “drawing inferences that counsel could do but with ... the imprimatur of testifying as a law enforcement officer,” that he may “usurp the jury's function,” and that he may be “doing nothing more than speculating”)).

Inadmissible As Expert Testimony

The Sixth Circuit also considered the government's claim that the agent testimony could have been admitted as expert testimony under FRE 702, even though the trial testimony "exceeded the scope of its expert notice" required under Fed. R. Crim. P. 16, but suggesting any error could be harmless. However, the Sixth Circuit concluded it was:

not clear that Agent Lucas would have been qualified as an expert even had the proper notice been given.... Additionally, although Agent Lucas explicitly referred to his expertise and credentials, giving himself an aura of authority on the stand, it is not clear what expert methodology he relied on to form his opinions (outside of his expertise on street slang and drug terms, which had already been granted). Testimony under Rule 702 must be “the product of reliable principles and methods . . . reliably applied . . . to the facts of the case.” Fed. R. Evid. 702. Here, Agent Lucas “provided virtually no methodology or guiding principles that would enable him to decode the wiretapped phone calls . . . .”
Freeman, __ F.3d at __ (quoting Johnson, 617 F.3d at 294)).


The Freeman case highlights a dispute in the circuits on the use of law enforcement lay opinion testimony concerning the interpretation of recorded conversations. The Federal Evidence Blog has noted a number of the cases cited by the Sixth Circuit as providing insight into the admission of law enforcement testimony as lay testimony. See Four-Part Inquiry Governing Admission Of Lay Testimony On "Coded" Discussions Four-Part Inquiry Governing Admission Of Lay Testimony On "Coded" Discussions (July 5, 2012).


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