Reversible Error Resulting From "Cloaking" Lay Law Enforcement Testimony "In The Guise Of Expert Testimony"

Challenges arise in presenting dual FRE 701 lay and FRE 702 expert testimony by the same law enforcement witness. Generally, the concerns in in presenting a witnesses' dual testimony may be addressed through the use of “proper precautions to minimize potential prejudice” inherent in this type of testimony. A recent Fourth Circuit case, resulting in the reversal of jury trial convictions, shows that even the typical precautions can still miss the mark of avoiding juror confusion inherent in the use of dual-testimony law enforcement witness, in United States v. Garcia, _ F.3d _ (4th Cir. May 15, 2014) (No. 13-4136)

The use of dual FRE 701 lay and FRE 702 expert testimony by the same law enforcement witness is a controversial practice in some circuits. See, e.g., recent examples prior blog posts from the Federal Evidence Blog. The circuits have noted that the dual lay-expert testimony witness problem can be resolved by application of a number of prophylactic steps. For example, the Fourth Circuit has proposed a number of actions that might avoid problems with presenting dual expert and lay testimony witness, such as:

  1. The trial judge give[s] "a cautionary instruction to the jury, reminding the jury that it could 'give the testimony whatever weight you think it deserves.'”
  2. Defense counsel is afforded the opportunity to "cross-examine[ ] the agent [witness] about his expert opinion, “which further clarified the testimonial capacities for the jury.”
  3. The "district court require[s] the government to establish a proper foundation for the witness's expertise."
  4. "The government ... prefaced [the agent's] expert testimony by asking him to interpret the coded language's meaning ‘based on [his] expertise.’"
United States v. Baptiste, 596 F.3d 214, 224 (4th Cir. 2010) (quoting United States v. Farmer, 542 F.3d 363, 371 (7th Cir. 2008)); see also Circuit Consensus: Safeguards To Admit Dual Fact And Expert Law Enforcement Witness Testimony (summarizing Baptiste).

A recent Fourth Circuit case clarifies that the prophylactic steps, such as those suggested in Baptiste, are not a magic formula. Even these steps will be unavailing if the results do little to resolve the problem of juror confusion inherent in the presentation of law enforcement dual expert and lay witness testimony.

Trial Court Proceedings: Expert On Meaning Of "Coded Drug Language"

In the case, defendant Garcia was arrested as part of a heroin trafficking conspiracy. The evidence produced against him and other co-conspirators consisted of surveillance and wiretaps on mobile phones used by the defendant and other co-conspirators. The government relied on FBI Special Agent Dayton to present this evidence after she had been qualified as an expert on the meaning of "coded drug language" reflected on the wiretaps of the charged conspirators. Over the course of the six day trial, Special Agent Dayton appeared on 18 separate occasions to testify about the investigation of the alleged conspiracy and "the coded language used in recorded wiretapped calls between the conspirators." Garcia, __ F.3d __.

During his trial, the defendant objected to Special Agent Dayton's expert testimony. After conviction, the defendant challenged the special agent's testimony including that the trial court provided "inadequate safeguards to protect the jury from conflating Dayton's testimony as an expert and fact witness."

Fourth Circuit Analysis: Jury Confusion Concerns Resulting In Reversal

The Fourth Circuit agreed that reversible error resulted and vacated the jury trial convictions. While the agent was properly qualified as a decoding expert, the trial court "failed to adequately safeguard against a strong likelihood of jury confusion between Agent Dayton’s testimony as an expert witness and as a fact witness, and in ensuring that, in her capacity as an expert witness, Agent Dayton 'reliably applied' her methodology and adequately set forth the underlying permissible foundations for her opinions." As the circuit noted, "individuals who testify as expert and fact witnesses can cause jury confusion, and such a manner of proceeding is only 'acceptable where ‘the district court took adequate steps ... to make certain that [the witness's] dual role did not prejudice or confuse the jury.’" Garcia, __ F.3d __.

While the trial court took steps to avoid jury confusion, the steps taken in this case were insufficient. For example:

  • After the trial court informed the jury that the government would clearly indicate whether based on facts or expertise, however, the prosecutor failed to do so, as the questions repeatedly "mov[ed] back and forth between expert and fact testimony, with no distinction in the Government’s questioning or in Agent Dayton’s answers"
  • There were occasions in which the agent "used her personal knowledge of the investigation to form (not simply to 'confirm') her 'expert' interpretations"
  • The government failed "to demonstrate that Agent Dayton was not merely channeling information and statements by non-testifying participants in the conspiracy into the trial record"; it was unclear whether the expert testimony reflected "independent judgments" or was based on the statements of others
  • The cautionary instruction given by the trial court "was insufficient to mitigate the potential for prejudice"

As one example, among others, the circuit noted the agent's interpretation that “a hundred forty five point” referred to “145 grams of heroin,” which was "confirmed with evidence that police seized 145 grams of heroin from one of the co-conspirators on the call." This opinion was not based on expertise but on the facts of the case. As the circuit observed:

Instead, this exemplifies occasions, and we discern many of them, in which Agent Dayton simply substituted information gleaned from her participation in the investigation (including post-indictment debriefings of participants in the conspiracy) for ostensible expertise. For this, the Government need not have called a “decoding” expert at all: simply pointing to the seizure of 145 grams of heroin, and then the repeated mention of “145” in this call clearly would have been enough for any juror to make the connection. But cloaking this connection in the guise of expert testimony goes beyond what is contemplated under Federal Rule of Evidence 702, which requires an expert to “reliably appl[y] the principles and methods” for which she was qualified as an expert. The Rule contemplates that an expert’s opinion testimony will be “helpful to the jury,” not merely helpful to the prosecutor as transmutations of simple fact testimony.
Garcia, _ F.3d at _.

In addition to the problem in presenting lay and expert testimony, the circuit also concluded that the government failed to provide sufficient foundation for the expert testimony on coded words. For example, it was unclear how the agent could opine the meaning of certain words (such as "show time" referring to "heroin"). The methodology used by the expert was unclear.

The circuit found that the error was not harmless. As the circuit explained,

We are persuaded that, under the circumstances of this case, neither the district court’s cautionary instructions to the jury nor its sporadic sustaining of some of counsels’ objections adequately mitigated the risk of substantial prejudice. Furthermore, we are unable to conclude that the missteps evident in this record were harmless. We reach this conclusion reluctantly, because the district court tried mightily to hew to the lines we have drawn in prior cases.
Garcia, _ F.3d at _.


The Garcia case demonstrates the risks that are taken when a law enforcement officer provides both lay and expert testimony. In this case, during 18 separate trips to the stand, the record did not clearly demarcate whether the testimony was lay or expert testimony. While some precautions were taken, they were insufficient to mitigate the chance of juror confusion. Consequently, the jury trial convictions were reversed and the case was remanded for a new trial. As contrasts, the Baptiste case demonstrates sufficient steps that may be successfully taken to mitigate the inherent risk of prejudice, while the Garcia case shows that the risk of confusion may not be resolved where the steps are inadequate.


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