Using Expert Testimony To Interpret Recorded Code Words For The Jury

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On the use of an experienced agent to provide expert testimony to explain the meaning of certain code words obtained during recorded conversations between the defendant and a confidential informant, the Seventh Circuit concludes the expert did not impermissibly comment on the defendant’s mental state under FRE 704(b), in United States v. Garcia-Avila, 737 F.3d 484 (7th Cir. Dec. 13, 2010) (No. 13–1313)

Given the clandestine nature of criminal conduct, it is not uncommon for participants to use code words as an effort to conceal the true nature of the activity. The meaning of the code words may not be readily understood by the jury. There are different ways to explain code words to a jury that may not otherwise understand them. Participants to the discussion may explain the meaning of the code words. Lay testimony may be used under FRE 701. See, e.g., Seventh Circuit Assessment Of Lay Opinion On Use Of Code In Other Than Drug Transactions. However, some circuits are divided on the use of agent lay testimony to explain the meaning of code words. See, e.g., Sixth Circuit Joins Five Other Circuits In Limiting Agent Lay Testimony Interpreting Recorded Conversations.

Alternatively, an expert may be asked to explain the meaning of code words under FRE 702. However, FRE 704(b) limits expert opinion testimony on the mental state of the defendant in criminal cases. While FRE 704(a) generally allows expert testimony on an ultimate issue in the case, FRE 704(b) contains an important exception: "In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone." The Seventh Circuit recently considered a challenge to expert testimony concerning code words.

Trial Proceedings: Expert Testimony

Defendant Garcia-Avila (“Garcia”) was prosecuting for conspiring to distribute and possess with intent to distribute methamphetamine and attempted distribution of methamphetamine. The investigation included recorded conversations between the defendant and a confidential information about obtaining “ice.” At trial, the government called an expert DEA agent to explain the meaning of certain code words in the transcripts of the recorded conversations. The expert, who did not participate in the investigation, gave his conclusions about particular statements:

On direct examination, Johnson was asked numerous questions beginning with, “What do you understand [Garcia] to mean when he said …?” Defense counsel never objected to the form of these questions or to Johnson’s responses. On cross-examination, Johnson made clear that he (1) had not participated in any aspect of the investigation, (2) had not listened to the recordings or to trial testimony, (3) did not have personal knowledge about the speakers identified in the transcripts, and (4) could not authenticate the voices identified in the transcripts.

Garcia-Avila, 737 F.3d at _. No objection was made to this testimony at trial. At the end of the trial, the prosecutor referred to the expert testimony during closing argument: “It’s not a coincidence that … this conversation is entirely in slang and in code words … . [Garcia is] using those words because he understands them. He knows them, and he does these things.” Garcia-Avila, 737 F.3d at _. Again, no objection was raised. The jury convicted the defendant as charged and the court sentencing to a ten year prison term. For the first time on appeal, he challenged the expert testimony of the agent concerning his conclusion of the code words.

Seventh Circuit Analysis: Clarifying No Expert Connection To The Investigation Or Special Knowledge About The Defendant's Mental State

The Seventh Circuit reviewed the issue for plain error and found none. The circuit noted that it had "held that experts may testify as to the way drug dealers operate and to the meaning of code words dealers use as long as the testimony is based on their expert opinion and not on the defendant’s specific mental processes." Garcia-Avila, 737 F.3d at _ (citing United States v. Lipscomb, 14 F.3d 1236, 1242-43 (7th Cir. 1994) (“When a law enforcement official states an opinion about the criminal nature of a defendant's activities, such testimony should not be excluded under Rule 704(b) as long as it is made clear, either by the court expressly or in the nature of the examination that the opinion is based on the expert's knowledge of common criminal practices, and not on some special knowledge of the defendant's mental processes.”); United States v. Are, 590 F.3d 499, 512–13 (7th Cir. 2009) (expert testimony about “coded language” did not violate FRE 704(b), since the expert based his testimony on his experience and training and “not on some special knowledge of the defendant's mental processes or mental states”); United States v. Avila, 557 F.3d 809, 820 (7th Cir. 2009) (admitting expert testimony to assist the jury in understanding the use of “hidden compartments” to transport “large amounts of drugs”)).

The circuit noted that the phrasing of some of the questions (such as, “What do you understand [Garcia] to mean when he said …?”) "may have alluded to Garcia’s mental state." However, the agent also informed the jury:

that he was not testifying based on personal knowledge. He testified that he (1) could not vouch for the accuracy of the transcripts, (2) had not listened to the recordings of the conversations that took place on February 24, 2010, and March 1, 2010, and (3) lacked personal knowledge of the identities of any of the speakers. In addition, on cross-examination, Johnson admitted that he had not participated in any aspect of the investigation. Johnson made clear that he was not testifying based on “some special familiarity with the workings of [Garcia’s] mind,” but instead, was relying upon his 24 years of experience and his “knowledge of common criminal practices” in order to help the jury understand coded language related to drug transactions.

Garcia-Avila, 737 F.3d at _ (quoting Lipscomb, 14 F.3d at 1242–43).

Finally, the circuit noted that the defense failed to object at trial, "either to the form of the questions, or to [agent] Johnson’s responses." Consequently, "even if portions of Johnson’s testimony were admitted in error, we can reverse only if the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Garcia-Avila, 737 F.3d at _ (quoting United States v. Christian, 673 F.3d 702, 708 (7th Cir. 2012) (plain error standard)). Yet, the Seventh Circuit found "no error here."

Conclusion

While the form of the question to the expert came close to commenting on the mental state of the defendant, in Garcia-Avila the circuit notes that certain steps were taken to clarify that the expert did not have any special or personal knowledge about the defendant's mental state from participating in the investigation. The circuit also noted that the expert did not participate in the investigation and was not testifying as both a lay and expert witness, which has been a problem in other cases. See generally Seventh Circuit Warns About Using Dual Fact / Expert Law Enforcement Testimony.

For another comparable case involving expert testimony, consider Circuit Considers FRE 704(b) Limit On Expert Intent Testimony.

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Photo Description: U.S. Court of Appeals for the Seventh Circuit at the Everett McKinley Dirksen United States Courthouse in Chicago, Illinois. Learn more about the history of the courthouse.

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