Curbing Law Enforcement Official Testimony Abuse: Overview, Course of Investigation, Structure and Terminology, and Summary Testimony

This article is the third in a series of three articles on lay and expert witness testimony. The focus of this series of articles is in significant part upon the testimony of law enforcement officials in criminal cases. The first article examined the prosecution calling of law enforcement officials under the guise of lay witness testimony to render opinion testimony, a practice supported by the Department of Justice, thus avoiding expert witness disclosure and reliability requirements in spite of the amendment to Fed.R.Evid. 701 clearly distinguishing lay from expert witness opinion testimony. It also explained and critiqued the concepts of “particularized knowledge” “skilled” and “treating physician” lay witness opinion testimony. The second article was a primer on expert witness testimony addressed to attorneys trying criminal cases under the Federal Rules of Evidence or state evidence codes modeled thereon highlighting the critical operative components of Fed.R.Evid. 702-705 and the discretionary use of a hypothetical question. This article, building on the two prior articles in this set, examines expressions of concern appearing in recent federal court of appeals decisions that sometimes prosecutors in presenting overview, course of investigation, structure and terminology, along with summary law enforcement expert testimony, and occasionally summary law enforcement lay witness testimony, have done so in violation of the Federal Rules of Evidence and the Confrontation Clause. Since the 1980s the prosecution, particularly in federal court, has offered into evidence testimony by law enforcement officials, including participating case agents, opining on various items such as the nature, structure, operations, leadership, symbols, jargon, etc., of an organized crime family, gang, etc., identification of terms used to identify particular persons within the entity such as “captain,” “capo,” “regime,” or “crew,” as well as explain the meaning of communications containing “code” terminology. While admissibility for the foregoing purposes has been sanctioned by the courts, judicial opinion has at the same time expressed strong concern that employment of law enforcement officials as expert witnesses not cross the line from legitimate employment to “translate esoteric terminology” and “to explicate an organization’s hierarchal structure” and stray into the “illegitimate and impermissible substitution of expert opinion for factual evidence.” Substantial concern has also been expressed that the jury may improperly “place greater weight on [such expert testimony] perceived to have the imprimatur of the government” in part because “the jury may unduly credit the opinion testimony of an investigating officer based on a perception that the expert was privy to facts about the defendant not presented at trial,” as well as potentially “endorse the veracity of the testimony” presented during the course of trial by others. Finally, the testifying prosecution law enforcement official may improperly base his or her opinion testimony on conversations with non-testifying occurrence witnesses, codefendants and/or other law enforcement officials raising Fed.R.Evid. 703 and more importantly confrontation clause issues as well. The propriety or impropriety of law enforcement official expert witness testimony is affected by whether the particular law enforcement official (1) is also a lay fact witness, possibly but not solely, because involved in the matter as a participant, for example, an undercover agent making a drug purchase; (2) was the supervising case agent whether or not also a lay fact witness, as a participant or otherwise; or (3) is a law enforcement official testifying generally with respect to matters relevant in the case at hand having no personal involvement whatsoever. Finally, prosecutors have tendered law enforcement officials as expert witness in areas beyond broadly speaking structure and operation or coded terminology. Such expert witnesses have been employed to (1) explain the course of the government’s involvement with the accused and the criminal enterprise he or she is a part of; (2) as a summary expert at the conclusion of the case, raising issues previously encountered with hypothetical questions; or (3) are even more questionable, as an overview witness at the beginning if the government’s case in chief to give the jury a roadmap to follow.