Thursday, December 10, 2009
Conduit For Sale: Fourth Circuit Finds No Problem With Experts Relying Upon Testomonial Hearsay As Long As They Are Not Mere Conduits
Federal Rule of Evidence 703 provides that:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Meanwhile, the Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." So, what should courts do when experts for the prosecution plan to provide opinion testimony based upon evidence that itself would violate the Confrontation Clause? That was the question addressed by the Fourth Circuit in its recent opinion in United States v. Johnson, 2009 WL 4348845 (4th Cir. 2009).
In Johnson, Donna C. Johnson, Craig A. Scott, and John A. Martin were convicted of conspiracy and other offenses in relation to the distribution of narcotics." During its investigation of the drug conspiracy alllegedly involving the defendants,
the government received court authorization and intercepted telephone calls between various members of the drug conspiracy. To help the jury interpret those calls at trial, the government presented two police officers, Sergeant Christopher Sakala and Corporal Thomas Eveler, as experts on the subject of drug trafficking. Both officers had extensive training and experience, and Martin does not question their qualifications.
Sakala and Eveler testified that several seemingly innocuous terms used in these calls, such as "tickets" and "T-shirts," were actually code words for narcotics. Sakala explained how he reached his conclusions. Because drug traffickers frequently use code words to avoid detection, he looked for "pat terns of conversation that [did not] make sense."...For example, members of this conspiracy often discussed buying and selling large numbers of "tickets" but did not specify “which shows they wanted tickets for....where they wanted to sit, [or] what days they wanted to go to the show."...Therefore, it became "obvious" in his view that "tickets" was a code word for narcotics....
Likewise, Eveler explained that he decoded the conversations by looking for unusual "pattern[s] of speech."
Later, Sakala "explained that he considered several sources of information, such as evidence that had been seized during the investigation, before reaching a conclusion about the meaning of a particular conversation. In addition, he took into account 'interviews with witnesses, cooperators, [and] cooperating defendants.'"
After he was convicted, Martin appealed, claiming, inter alia, that Sakala improperly relied upon testimonial hearsay that was inadmissible under the Confrontation Clause as interpreted by the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004). According to the Fourth Circuit,
An expert witness's reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation. Allowing a witness simply to parrot "out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of expert opinion" would provide an end run around Crawford....For this reason, an expert's use of testimonial hearsay is a matter of degree....The question is whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay. As long as he is applying his training and experience to the sources before him and reaching an independent judgment, there will typically be no Crawford problem. The expert's opinion will be an original product that can be tested through cross-examination.
According to the Fourth Circuit, there was no such problem in the case before it because
there is no question that Sakala and Eveler did not become mere transmitters of testimonial hearsay. Assuming for the sake of argument that the interviews they considered were testimonial, the experts never made direct reference to the content of those interviews or even stated with any particularity what they learned from those interviews. Instead, each expert presented his independent judgment and specialized understanding to the jury. That understanding was not surprisingly the product of the accumulation of experience over many years of investigation of narcotics organizations and contacts with the informants and witnesses who operate within them. Sakala and Eveler explained how, based on their knowledge of narcotics trafficking, they were able to identify odd conversational patterns in the phone calls and decipher various code words. The fact that their expertise was in some way shaped by their exposure to testimonial hearsay does not mean that the Confrontation Clause was violated when they presented their independent assessments to the jury. Because they did not become mere conduits for that hearsay, their consideration of it poses no Crawford problem.