Monday, December 28, 2009
Expert In Lay Witness Clothing: Louisiana Opinion Reveals Rule 704 Problem With Police Officers Testifying As Lay Witnesses
Federal Rule of Evidence 701 provides that
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." I am equally worried now, however, that prosecutors are evading the requirements set forth in Federal Rule of Evidence 704 and state counterparts through the simple expedient of proffering an expert in lay witness clothing. A good example of this can be found in the recent opinion of the Court of Appeal of Louisiana, Fifth Circuit, in State v. Collins, 2009 WL 4640646 (La. App. 5 Cir. 2009).
In Collins, Dwight Collins, Jr., appealed his conviction of possession with intent to distribute heroin. That heroin (along with a razor, scale, sandwich bags, and money) was recovered by Detective David Canas and other employees of the Jefferson Parish Sheriff's Office from a hotel room from which Collins had just left.
After discussing his background, the prosecutor asked Detective Canas what he believed the packaging of the heroin was indicative of, based on his experience as a narcotics detective for six years and in making numerous narcotics arrests. Defense counsel objected, stating that the witness had not been qualified as an expert and could not render an opinion. The prosecutor said, "I'm asking his experience [sic] of six years as a narcotics detective, has he come across that type of packaging, and what has it meant to him." The trial judge said the witness could answer that question. Afterwards, Detective Canas testified, "That's for distribution purposes."Detective Canas later testified without objection that, based on his experience, the scale and the razor were indicative of the sale of narcotics. Defense counsel did object when the prosecutor began to ask what the presence of sandwich bags indicated to him based on his experience. However, there was no ruling on that objection, and the detective continued his testimony, noting the sandwich bags were indicative of possession with intent to distribute.The prosecutor subsequently asked Detective Canas what he believed was occurring when he saw the razor blade, digital scale, money, and the other items in the hotel room. The detective responded that he thought that narcotics were being sold. When asked why he arrested all three people, the detective replied that anyone who walked into that room would have knowledge that illegal narcotics activity was going on, as the drugs were in plain view and in sandwich bags. Furthermore, the detective stated he knew there were three people in the room.On cross-examination, Detective Canas testified that he arrested the Defendant for possession with intent to distribute because of the way the heroin was packaged, "and the baggies, the scale, and all that."
After he was convicted, Collins appealed claiming, inter alia, that Detective Canas' testimony was improperly received under Louisiana Code of Criminal Procedure article 704, which provides that:
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.
According to the Court of Appeal of Louisiana, however, Collins faced a fundamental problem in this regard: Detective Canas was not qualified as an expert witness and thus testified as a lay witness. Now, I am not going to get into the issue of whether Detective Canas should have been able to offer the above testimony as a lay witness. Assuming, though, that he should have been able to offer this testimony, he clearly was a quasi-expert, and I don't see any reason why he should have been able to express opinions as to the guilt of the accused simply because he was an expert in lay witness clothing.