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."]