For Evidence Junkies--Rule 701 versus Rule 702:

United States v. Maher, (1st Cir. July 6, 2006).

A police officer testified based on his training and experience with numerous narcotics cases that a post-it note found in defendant's van contained a list of customers' orders; was a "[d]rug distributors' way of being organized;" and that the number four written next to an individual's name referred to "[f]our ounces of cocaine." The question on apeal was whether the officer's testimony needed to be qualified as expert testimony under Rule 702, or was lay opinion testimony under Rule 701. The First Circuit concluded that "Officer MacVane's testimony, that based on his experience the Post-It notes were likely notes of drug orders and the number '4' referred to a quantity of the drug found in the van, did not cross the line to become expert testimony."

The problem is that Rule 701 allows opinion testimony as lay testimony only if the testimony is "rationally based on the perception of the witness," and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Rule 702, meanwhile, defines expert testimony as including testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education." If anyone could look at the post-it note and determine what it meant, it's not at all clear why the testimony would be helpful to the jury, which could look at the note just as easily as MacVane. But the prosecutor in any event disclaimed that anyone could do this, and instead the testimony was admitted, as the court noted, based on his experience. [last two sentences were edited] But that means that when testifying regarding the contents of the post-it note, MacVane was testifying as an expert, and his testimony should have been subject to the much stricter standard of Rule 702.

The First Circuit basically misunderstands Rule 701, stating that it "is meant to admit testimony based on the lay expertise a witness personally acquires through experience, often on the job." Given that Rule 702 applies to experience-based testimony, and that the rules have been amended to ensure that there is no overlap between 701 and 702, I don't see how that can be so, though I acknowledge that there is some ambiguity in the Advisory Committee Note to the 2000 amendment to Rule 701. In particular, the ACN favorably cites a couple of cases in which the basis of "lay" testimony appears to be specialized knowledge based on experience--though even these cases create rather narrow exceptions, allowing business owners to testify regarding the value of their businesses, and drug users to testify regarding the identity of a drug. Assumedly, the average business owner or drug user is inherently qualified to testify on these matters, while the average cop, and perhaps even the average narcotics cop, is not qualified to testify regarding the meaning and significance of post-it note.

My own view, in any event, is that the text of the rules trumps citations in the ACN, and the Rule 701 properly applies only to testimony based on the perception of fleeing events that does not require the witness to apply specialized knowledge. Application of specialized knowledge from whatever source woud bring the testimony within the sphere of expertise. See D.H. Kaye, et al., The New Wigmore: Expert Evidence sec. 1.7 (2004). [In the case at issue, as a commenter below points out, the officer could testify to what was on the post-it notes and wheter, e.g., it looked like a phone number, but once he is applying his specialized knowledge to argue that this was all drug-related, that becomes a 702 issue]

Two asides: First, the First Circuit was making a "plain error" ruling, and given that standard, the decision is likely correct, even if the reasoning leaves something to be desired. Second, police officers seem to testify to some pretty preposterous things. Why are post-it notes "a drug distributor's way of getting organized," as opposed to either any disorganized person's way of getting organized, or, for that matter, just a note written on some yellow paper? Sometimes, a post-it is just a post-it. [Indeed, one advantage of applying Rule 702 to evidence like this is that the officer would have to explain to the judge how he gets from "post it note" to "this is how a drug distributor gets organized."]

Voorhies (mail):
David, Your father-in-law is right religion is the blame for most of the worlds problems. Nothing is more obvious. Probably more than 'most'.
8.7.2006 11:29pm
Arvin (mail) (www):
The problem is that Rule 701 allows opinion testimony as lay testimony only if the testimony is "rationally based on the perception of the witness," and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Rule 702, meanwhile, defines expert testimony as including testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education." If anyone could look at the post-it note and determine what it meant, MacVane's testimony would not have been "helpful to ... the determination of a fact in issue," and thus not admissible under Rule 701.

I'm not sure this is true, based solely on the text of the rule itself (I have not read the case). For example, imagine John saw a piece of paper that said:

Jenny Smith

The lawyer asks: what did you see? The witness answers: I saw a piece of paper with Jenny's number on it. (Or, if an anal attorney objects to improper opinion, he can answer I saw the name Jenny Smith and then 7 digits printed under the number. Did it appear to be a phone number? Yes. Did it appear that it was Jenny Smith's number? Yes.) Ignore any possible hearsay problems.

Obviously this is an opinion based on John's experience of seeing phone numbers, and qualifies as a lay opinion. Would John's testimony be barred because it isn't really helpful to a determination of a fact in issue (because anyone could draw their own inference from the testimony that the paper said Jenny Smith and 867-5309)? I have yet to be a lawyer, but I would imagine the answer is no, that John would be allowed to give the opinion that this was Jenny's phone number on this piece of paper.

Now, it's possible that Officer MacVane's testimony should have been qualified as expert testimony under 702 because it WAS based on specialized knowledge as defined under 702. But that is different than saying that if anyone can figure something out from the pure facts, the witness's opinion should not be allowed because it would not be helpful.
8.7.2006 11:40pm
27 USC:
Why does this not fall well within Rule 701? I acknowledge that 701 and 702 are mutually exclusive. But, as I read the Rules, the dividing line is not whether witness testimony is "experience-based," but whether a witness is "qualified to be an expert." After all, witness' "experience" can undergird both 701 and 702 testimony (e.g. "I knew it was a 1963 Rambler because I used to own one.") Similarly, it seems odd to say that testimony based on "knowledge" or "education" is expert testimony.

The First's statement is a bit oddly phrased (what exactly is "lay expertise"?) but probably meant to say simply that lay testimony based on experience (often obtained on the job) is Rule 701 material. Given what I've said above, I think this is right.

The "qualified to be an expert" language is, of course, question begging. But I think guidance is not to be had in Rule 702 but in Rule 701: expert testimony is testimony that is "based on scientific, technical, or other specialized knowledge." (This does get a little circular, since 701 also states that such knowledge must be "within the scope of Rule 702.")

Was the officer's post-it note testimony "based on scientific, technical, or other specialized knowledge"? I don't think so. Any lay person would see the note and understand it to be a drug delivery list. The police officer's statement that his conclusion was based on his long experience as a police officer (preposterous though it may be) was little more than harmless embellishment.
8.7.2006 11:42pm
27 USC:
Drat -- beat to the punch!
8.7.2006 11:43pm
Guest44 (mail):
I just don't get why you're so keen to keep testimony away from the jury. It's so obvious that 702 can encompass all testimony if you let it -- you know nothing except by your experience. Kumho reveals this whole endeavor for what it is--mistrust of the jury's ability to tell the truth. You think judges know better than them?
8.8.2006 12:00am
DavidBernstein (mail):
Well, Guest, for one thing, lots of defendants (including some later exonerated by DNA Evidence by the Innocence Project) have been convicted based on phoney-baloney evidence that doesn't meet current Rule 702, although courts seem to bend over backwards to admit prosecution evidence anyway.
8.8.2006 12:03am
Master Shake:
David - a very refreshing post.
8.8.2006 12:16am
Kevin L. Connors (mail) (www):
I think this one anecdote, while descriptive, is insufficient to describe the whole scope of the problem. IMHO, entirely too much pure conjecture - SWAGs - edge-e-kated guessin', by police, particularly in the event of drug cases, has been accepted under Rule 702.

Further, the courts have been given wide leeway upon just whom to accept under Rule 702, and it has oft-times been abused.
8.8.2006 12:41am
Steven Jens (mail) (www):
IANAL, but I think the ability to recognize a phone number is, while based on experience, based on experience that virtually every layman has. I'm not qualified to say how "other specialized knowledge" should be construed, but if I were drawing up rules of evidence with extra restrictions on expert testimony, my basis for comparison would be the jury. If a member of the jury had seen a sheet of paper with a name and seven digits (with a dash between the third and the fourth), the juror would consider it likely that he was reading a phone number connected with the name. The witnesses are, in some sense, the jury's eyes and ears (how far from legal thinking am I here?) -- allowing them to make incidental interpretations of evidence that the jurors themselves would have been unlikely to interpret otherwise strikes me as not specialized. If I saw a post-it note in a pickup with a "4" next to a name (or letters that appeared to be a name -- or markings that appeared to be letters forming a name), I wouldn't draw any connection with drug dealing.
8.8.2006 12:42am
PatHMV (mail) (www):
I don't think a policeman needs to satisfy Daubert before he can say "this is typical of drug dealer behavior". Police experience is not of the sort which can be rigorously proven by the scientific method. I think juries are quite capable of recognizing the difference between science and police opinion about criminal behavior. It's one thing for an officer to say "the defendant exhibited Horizontal Gaze Nystagmus", which my education and training have told me is a sure indicator of intoxication and another to say "this looks like a drug dealer's price list to me". One clearly suggests a scientific certainty, and should be treated accordingly. The other seems to me a much more general and less authoritative statement of opinion. The layman will have no knowledge of HGN and will have little choice but to take the officer's word for it. But the layman can easily say, "that post-it looks just like the list I left myself to remember the grocery list the wife gave me, that's not proof".
8.8.2006 1:13am
Arvin (mail) (www):
Steven Jens:

I think your analysis may be correct in terms of whether Officer MacVane's testimony should or should not fall under the umbrella of 702. The point I was making was merely that I don't think one can automatically exclude lay testimony admitted under 701 if the opinion is a conclusion that is obvious from the facts. In other words, the reason to exclude Officer MacVane's testimony would be because it was based on expert knowledge and MacVane was not yet qualified as an expert, NOT because it would not be helpful to the trier of fact on a material issue.
8.8.2006 1:18am
Peter B. Nordberg (mail) (www):
As for the text of the rules, I think "27 USC" is pretty much correct. For testimony arising from personal knowledge, the text of the rules just tells us that it's expert testimony if it involves "specialized knowledge within the scope of Rule 702." The rules do cover mutually exclusive territory, but the rules' definition of the borderline between those territories is both vague and circular.

There is a substantial corpus of decisional law on Rules 701 and 702 in the context of law enforcement testimony on the modus operandi of drug dealers. It tends to gravitate toward a Rule 702 analysis, but there's a substantial Rule 701 strand as well, particularly in cases, like this one, where the witness's chain of inference is pretty uncomplicated and seems based on little more than "common sense." The incoherence in the decisions arises partly from persistent prosecutorial attempts to have it both ways. Prosecutors want the officer to take the stand and impress the jury with the keenly honed expertise that the officer has acquired in his or her long and noble crimefighting career. But prosecutors don't want the testimony to be subject to the pretrial disclosure requirements for expert evidence in Fed. R. Crim. P. 16. The usual route for writing this kind of testimony out of Rule 16's disclosure requirement is to hold that it was expert opinion, but that its admission as undisclosed lay opinion was harmless error. Calling it lay opinion is just an alternative doctrinal route to the same result -- which is determined, in the end, not so much by the putative rules, but rather in light of the fundamental guiding principle of all modern American criminal appellate jurisprudence, which is that guilty verdicts must always and everywhere be upheld.

By the way, I think your point on helpfulness to the trier of fact proves too much. It could be raised on almost every occasion when lay opinion is offered.
8.8.2006 1:19am
The Anonymous AUSA (mail):
I'm a federal prosecutor who handles a fair number of drug cases, so you can take that as my bias - or perhaps my knowledge of the area. With due respect to Mr. Bernstein, in my experience Judges are not bending over to admit prosecution evidence, "phoney-baloney" or otherwise, and frankly it's a bit of an insult to a lot of prosecutors and cops who are trying to get it right.

I haven't read the specific opinion mentioned, but it's very common for this type of testimony to be admitted - because it's pretty common for drug dealers to keep notes of this type(commonly called drug ledgers or "pay and owe" sheets). Any moderately experienced officer's seen them numerous times, and the admissibility of opinions of this type is well established - regardless of which rule you cite.
8.8.2006 1:19am
Kevin L. Connors (mail) (www):
I may be out of my depth here (but this isn't Orin's blog, so I get to speak my mind. ;) ). You see, I am just a lay law groupie. But, as I understand it, virtually the only way to contradict testimony accepted under 702, is with other "expert testimony." Thus, when a cop gets up and says, "based upon my experience, that list was that of a drug dealer" (or a bookmaker, or whatever), it is pretty much futile for counsel for the defense to state, "well, it could just as soon be X, Y or Z," without some "expert testimony" to back it up.

And where are you going to get this "expert testify," faced against pure conjecture?
8.8.2006 3:08am
Kevin L. Connors (mail) (www):
To The Anonymous AUSA:

I respectfully submit that your opinion is influenced by the fact that you are part of the great criminalization-enforcement-incarceration triad, and see things through that prism.
8.8.2006 3:29am
OK Lawyer:
Seems to me, that a lay witness who sees the same information would not know what it meant. I see a piece of paper and a single digit number,I don't think "DRUG DEALER." I think, "hmm, a name and a number on a piece of paper. I wonder what that means." Thus, the officer's particular experience was necessary to the explanation of the item. IF the officer's experience and skill as an officer was necessary to a proper explanation, then the officer should have been forced to meet the 702 requirements. Why write rules if the language of the rules means nothing?
8.8.2006 11:06am
Here's a related issue I've come up against. Do you need an "expert," qualified as such, to testify to mainly non-controversial facts about the organization and structure of common, lawful professions? In a discrimination case involving a failure to consider an candidate for partner because of ethnicity, gender, or religion, do you need an expert to testify about the common partner/associate form of organization and how, in general, the profession culls a small number of partners from a large pool of talented, hard-working associates who, to a jury's eyes, are all "deserving"? Certainly a member of the defendant firm can testify that this is how his or her firm works, but do you need an expert to say that this is the professional norm? Judges, having been lawyers, might be tempted to take judicial notice of the fact, but how about something less familiar, like the standard structure and organization of, say, academic life at a research university?
8.8.2006 11:32am
ruidh (www):
OK Lawyer, what special experience is this officer really bringing to the case? Is he accustomed to seeing post-it notes with lists of known drug buyers in virtually all of his drug cases? Is there a scientific basis for this "experience" or is it merely a desire to offer testiminy useful to the prosecution?

I think people are much too willing to believe credulous statements from police officers when they are couched in phony terms of "expert testimony". The officer should be able to tstify on what he actually observed under rule 701, but any analysis which goes to drawing conclusions from the observations needs to be qualified under 702.
8.8.2006 11:40am
Mark F. (mail):
I'm a federal prosecutor who handles a fair number of drug cases...

Oh oh, the evil Lord Darth Vader is posting here.

How do you enjoy violating other people's rights and putting innocent people in prison, m'Lord?
8.8.2006 1:57pm
OK Lawyer:
An expert can be qualified by experience. But, he would still have to meet the 702 and Daubert requirements for providing such testimony. I am doubtful this officer could meet the full evidentiary requirements to provide this sort of expert testimony. My point was that clearly he was an "expert" for the purposes of 702.
8.8.2006 2:02pm
Twill00 (mail):
One would expect a good defense attorney to hand the officer five more post-it notes and ask him to please interpret them. One would be, say, from a health club with a guy's name and what racketball court (4) he was going to be playing on. Another would be what time (4) someone was meeting his girlfriend. Another would be the fourth (4) in a series of six "to do" notes. And so on.

The jury would laugh, at least.
8.9.2006 6:24am