Sunday, June 17, 2007

Case o' The Week: Freeman not a free man, despite expert errors in Ninth

Defendant Freeman lost this appeal, and is stuck with a 240-month sentence despite many errors arising from the testimony of a narcotic-cop expert. United States v. Freeman, __ F.3d __, Slip. Op. 7071 (9th Cir. June 18, 2007), decision available here. Nonetheless, Freeman remains an interesting decision that should prove useful when challenging the testimony of cops gussied-up in "expert" clothing.

Players: Interesting decision by visiting Judge Gibson.

Facts: Freeman was charged with conspiring to manufacture and sell over 500 grams of crack. Slip Op. at 7075. The key evidence was a series of intercepted calls involving coded language. Id. at 7076. An LAPD officer – working with DEA as a federal task force officer during this investigation – testified as an “expert” on the meaning of these coded words. Id. The officer also interpreted normal phrases for the jury, like “get all the particulars” and “how everything had turned out.” Id. at 7080. Not surprisingly, each of the officer's interpretations found a drug connotation. Id. Defendant Freeman testified, and said that the coded calls at issue were actually about stolen basketball tickets. Id. at 7077. Freeman was convicted on one count, after an Allen charge. Id. at 7077-78.

Issue(s): “Freeman argues that it was error for the district court to allow Shin to testify both as an expert witness concerning coded drug terms and as a lay witness.” Id. at 7085.

Held: “The fact that Shin possessed specialized knowledge of the particular language of drug traffickers did not give him carte blanche to testify as to the meaning of other words in recorded telephone calls without regard to reliability or relevance.” Id. at 7087. “Although portions of the expert witness’s testimony should have been excluded, we hold that the district court’s error was harmless.” Id. at 7076.

Of Note: While this is ultimately a defense loss (on the harmless error analysis) Freeman is actually a very useful opinion for the defense in attacking the travesty of narcotic-cop “experts.” Visiting Judge Gibson adopts the reasoning of the Second Circuit in Dukagjini, worrying that a case agent who testifies as an expert enjoys “unmerited credibility” for lay testimony. Id. at 7086. The Court also explained that a lay/expert cop witness gets a shot at unfairly summarizing the evidence, and usurping the jury’s function. Id. at 7086. Finally, this practice sneaks in inadmissible hearsay evidence, when the cop exceeds his scope of “expertise” (whatever that is). Id. at 7087. This helpful analysis should be front and center whenever the government notices narcotic “expert” cops or DEA agents.

How to Use: It’s important to emphasize several aspects of Freeman when using it in trial. First, the district court erred in this case – the government just caught a break on the harmless error analysis. Id. at 7090. Freeman is really a defense win, and its holdings on experts control future trials – the ultimate harmless error outcome is irrelevant to its lessons on experts.

Second, the defendant here did not raise a Confrontation Clause challenge, and so waived it. Id. at 7086 & n.2. “Constitutionalize” objections to expert testimony by preserving the Confrontation Clause objection: this may bolster an appellate challenge to the expert’s improper reliance on hearsay.

For Further Reading: Despite its strong points, Freeman ultimately illustrates the unjust “government expert” exception to FRE 702 – federal courts routinely allow sloppy government “experts” in criminal cases that would never cut it as defense witnesses, or as plaintiff experts in civil cases. For example, imagine a plaintiff’s expert in a federal personal injury case, who wanted to testify about the “true” motivations of a witness that said “he wished to get off the telephone while driving.” This would never be tolerated in a federal civil case, but it happened in Freeman. Id. at 7080-81.

For a great article on this expert double-standard, see D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99 (2000). Professor Risinger predicts, “in ten years we will find that civil cases are subject to strict standards of expertise quality control, while criminal cases are not. The result would be that the pocketbooks of civil defendants would be protected from plaintiff’s claims by exclusion of undependable expert testimony, but that criminal defendants would not be protected from conviction based on similarly undependable expert testimony.” Id. at 100. The Prof was right back in 2000, except that this result hasn’t taken ten years . . . .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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