EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, August 23, 2011

Hairy Situation: D.C. Judge Precludes Investigator From Testifying About Defendant's Inability To Grow A Beard

The Felony Calendars is blogging about the murder trial of Gary Dickens and Antwarn Fenner. Here is the blog's inroductory description of the case:

On August 8, 2008, in the late evening hours, Stanley Daniels was shot to death in the 3500 block of Georgia Avenue, Northwest, in Washington, D.C.  Daniels was 48 years old at the time.

Two men are charged with premeditated murder for Daniels' death:  Gary Dickens, now 41; and Antwarn Fenner, now 37. 

The government's theory is that Daniels' killing was a revenge killing.  On July 8, 2008 -- one month to the day before Daniels was killed -- Gary Dickens' estranged wife was stabbed to death.  In the days leading up to the shooting, Dickens and Antwarn Fenner -- Dickens' cousin -- understood that Stanley Daniels was the one who killed the wife.  

And so, the government will say, Dickens and Fenner conspired to kill Daniels.  Documents filed with the court suggest prosecutors will try to prove that both men planned the murder, and then Fenner pulled the trigger.

Fenner and Dickens were both indicted on first-degree murder and conspiracy charges.  Fenner alone faces weapons possession charges.

You can check out The Felony Calendars for detailed descriptions of the daily goings-on in the case, but in this post I wanted to focus on an interesting evidentiary ruling in the case dealing with the (in)admissibility of evidence about Fenner's alleged inability to grow a beard.

When asked about the shooting, an eyewitness held his hands out to either side of his face, apparently indicating a beard, and said the shooter's facial hair was "full." At trial, defense counsel, Michael Satin,

sought permission to introduce evidence that Fenner is physically incapable of growing a full beard.  His plan had two components:  first, Satin's investigator would testify that he's inspected the sides of Fenner's face, and has seen nothing (like stubble) to indicate Fenner can grow hair there.  And second, Fenner would give jurors a close-up of the sides of his face, so they could confirm the investigator's testimony.

The judge, however, reserved ruling on the second issue and precluded the investor from testifying, concluding that the private investigator was not qualified to give an opinion about whether the sides of Fenner's face are able to grow hair but leaving open the possibility for testimony from someone better-qualified. 

The next week, the judge did permit testimony by Fenner's ex-wife, who testified that when they were married, Fenner's 

facial hair was much as it was now:  a mustache and hair on his chin.  The mustache might have been thicker or thinner sometimes, but she has never seen him with hair on his cheeks -- even when he's gone for a few days without shaving.

Thereafter, the prosecutor presented partially contradictory evidence such as Fenner's booking photo, in which "Fenner had a full mustache and patchy tufts of hair along his jawline."

So, was the judge correct to exclude the investigator's testimony about Fenner's alleged inability to grow a beard? I found two cases partially on point.

In the first, People v. Alleyne, 99 Cal.Rptr.2d 737 (Cal.App. 4 Dist. 2000), the Court of Appeal, Fourth District, Division 3, California, affirmed a defendant's conviction for conspiracy to commit murder. In affirming, however, the court noted that

Alleyne's defense at trial focused primarily on Wengert's identification of him as the shooter. Several of his friends testified he did not have a beard, an earring, or sweat suit, all of which Wengert had attributed to the shooter. A dermatologist and a defense investigator provided corroboration Alleyne could not grow a beard.

Interesting. I don't know whether the prosecution objected to this testimony, but the dermatologist presumably provided expert testimony while the investigator presumably provided lay testimony.

Meanwhile, in State v. Jefferson, 516 P.2d 578 (Ariz. 1973), the Supreme Court of Arizona affirmed a defendant's conviction for robbery. At trial, eyewitnesses had testified that the robber had a beard, and the court then allowed an officer to offer his opinion that, at the time of arrest, the defendant had a "[b]eard on the side of the cheeks or jawbone [that] seemed to be about two to four days old."

In affirming, the Supreme Court of Arizona noted that while lay opinion might ordinarily not be allowed on this type of issue, there is an exception to the general rule pursuant to which

A witness may state his impression or inference with respect to the appearance of a person, animal, object, or place, if he has had adequate opportunity for observation, the details of such appearance cannot be reproduced before the jury to enable them to draw a correct inference, and he states as much as possible of the constituent facts.

The court then found that

The testimony to which objection was made could be considered as falling under the exception to the opinion rule, and the most rational means of describing the length of the beard was in terms of days' growth. Obviously the officer's estimate of a two- to four-day growth was not to be considered an exact statement; it was an estimate. The trial judge's ruling permitting the testimony to be admitted was not an abuse of his discretion; hence not error.

Both of these cases would seem to point to the conclusion that the judge in the trial of Dickens and Fenner should have allowed the investigator to testify. That said, D.C. courts apply a weird test for when lay opinion testimony can be admitted and when expert testimony is required. Very weird. In fact, I would say that the test sticks out like a sore thumb compared to the tests applied by all other jurisdictions. In fact, I recently completed an essay on the topic that I will soon be posting here and on SSRN. And, under the test, I can see why the judge excluded the testimony. More details to come.



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You cite two cases. The first appears to have no ruling at all on the question of whether the opinion testimony by the dermatologist was proper. Even if it was, though, you yourself note that the question of a trained dermatologist opining on a person's ability to grow a beard is dramatically different than that of an investigator with no apparent expertise in hair or skin. To use this case as support for anything would be dramatically bad lawyering.

Your second case approves of testimony that had two kinds of components: First, there was a statement of appearance (the person had a slight beard); second, there was a statement of opinion that the beard growth appeared to be of 2-4 days' length. But as I read the excerpt quoted here, the court's opinion was that the 2-4 day estimate was used to describe the length of the beard for the jury by using the most understandable metric (the length of beard associated with 2-4 days growth in most people) -- not to actually prove the evidentiary point that the beard had been growing for 2-4 days. The estimate of length of time growing is therefore not used for opinion at all. So that point is clearly off-point here as well.

One question to ponder is: What basis could an investigator have for saying that a person is incapable of growing a beard? He might certainly see that he had never seen the person with a beard. And he could say that when he's seen a beard that the person seemed to grow over a certain length of time, the beard looked patchy, etc. But what other basis could there be to show incapacity to grow a beard -- especially for an investigator who's presumably had only sporadic interactions with the defendant, has not seen him shaving, etc.? (And remember -- this is an evidence blog, after all -- hearsay evidence cannot count as the basis of his opinion, since the investigator is a nonexpert.)

Posted by: A lawyer | Aug 24, 2011 4:02:30 PM

A lawyer, I think that these are all fair points. And, in fairness, I wasn't in the courtroom to see what defense counsel claimed was the basis for the investigator's opinion. But as the Advisory Committee's Note to the amendment to Rule 701 states,

The amendment is not intended to affect the ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(ing) to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.'' Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1196 (3d Cir. 1995).

Is testimony that a person couldn't grow a beard simply testimony about the appearance of a person, making it permissible under Rule 701? It is probably a close call, and again, it probably depends on exactly how the investigator would have testified. Would he have testified that he saw the defendant 20 times and that his facial hair was often patchy, indicating inability to grow a full beard? Or would he have testified that he saw the defendant once or twice and that he was pretty much taking a shot in the dark?

Posted by: Colin Miller | Aug 24, 2011 7:11:04 PM

Doesn't the Advisory Committee note undercut your point? The Note speaks to the continued ability to give opinion testimony as to matters of appearance "that cannot be described factually in words apart from inferences." For instance, it is common for an eyewitness to opine that a person was "fat" or "thin" or "tall" or "dark-complexioned," or spoke with "Spanish accent". Each of these involve opinions or inferences, but those opinions or inferences are about the kind of thing where a witness ordinarily cannot give the specifics. For instance, a witness might well describe her assailant as fat -- but would not have a basis to say he was 250 lbs, but only 5'6".

Here, by contrast, it is possible to give factual content without the inference/opinion testimony. The investigator can say: "I saw Mr X 20 times over the 6-month period from January to June 20XX. During that time, he had facial hair in the beard area. The facial hair, however, was consistently patchy -- by which I mean that it did not cover the entirety of the typical beard/mustache area for an adult male. Instead, even where parts of his face did have facial hair, other big parts would remain bare or nearly bare." All he can't say is the resulting opinion testimony: that Mr X was incapable of growing a beard, as opposed to shaving selectively, applying Nair, etc.

Indeed, one wonders why the defense didn't simply proffer the straight-up fact testimony. There are two possibilities: (1) the defense couldn't think of a way to limit the witness' testimony to straight-up facts as given above (in which case, poor points for competence); or (2) the defense was hoping to get the jury to accept the investigator's testimony for more than its legitimate scope, by hoping the investigator would slip in some hearsay statements about the client's inability to grow a beard, or would appear to speak with authority about something he's not competent to testify on.

Posted by: A lawyer | Aug 26, 2011 2:43:18 PM

A lawyer, these are all good points. I will add to the analysis this passage from the Advisory Committee's Note to the amendment to Rule 701:

"The amendment incorporates the distinctions set forth in State v. Brown, 836 S.W.2d 530, 549 (1992), a case involving former Tennessee Rule of Evidence 701, a rule that precluded lay witness testimony based on ''special knowledge.'' In Brown, the court declared that the distinction between lay and expert witness testimony is that lay testimony ''results from a process of reasoning familiar in everyday life,'' while expert testimony ''results from a process of reasoning which can be mastered only by specialists in the field.'' The court in Brown noted that a lay witness with experience could testify that a substance appeared to be blood, but that a witness would have to qualify as an expert before he could testify that bruising around the eyes is indicative of skull trauma. That is the kind of distinction made by the amendment to this Rule.

So, testifying that a person's beard appeared to be 2-4 days old is testimony that "results from a process of reasoning familiar in everyday life," at least according to the Supreme Court of Arizona.

The question is the Fenner/Dickens prosecution is thus this: Do we think that a layperson's conclusion that a person he has seen several times with a patchy beard is incapable of growing a full beard a conclusion that results from a process of reasoning familiar in everyday life? Or is it more analogous to the skull trauma conclusion in the ACN, thus requiring expert testimony by (presumably) a dermatologist? It is definitely an interesting question.

Posted by: Colin Miller | Aug 27, 2011 6:35:49 AM

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