Sunday, August 24, 2014

Case o' The Week: Can you Hear Me Now? - Gadson and Cop "Lay Witness" Testimony under FRE 701

  “This case illustrates the pitfalls of a regime in which officers are permitted to testify as lay witnesses on the basis of information derived from the investigation as a whole, not all of which is before the jury, using specialized equipment and methodologies not available to the jury.” United States v. Gadson, 2014 WL 4067203, *31 (9th Cir. Aug. 19, 2014) (Berzon, J., dissenting), decision available here

  Judge Berzon is right: a case ripe for en banc review.

Players: Decision by Judge Ikuta, joined by Chief Judge Kozinski. Joined in part by Judge Berzon, who dissented in part. 

Facts: Gadson and Wilson were convicted after trial of a conspiracy to distribute cocaine, and firearm offenses. Id. at *1. They were arrested after agents investigated a drug conspiracy in Fairbanks. Id. A search of a hub house revealed drugs, guns and money. Id. at *2. Gadson was later surveilled and tied in with the main conspiracy: a search of Gadson’s house revealed a ballistic vest and lots of cash. Id. at *2. Wilson, arrested as part of the conspiracy, talked to a cousin on jail phones, complained about snitches, and beat a suspected CI in the jail. Id. at *3. At trial, the content of the tapes of the jail calls were interpreted and summarized by a cop “familiar with the prison telephone system.” Id. at *10. There was no defense objection at trial. 

Issue(s): “Wilson asserts that the district court erred in allowing Officer Thompson to testify concerning the content of the telephone calls . . .  According the Wilson, Officer Thompson’s testimony was inadmissible under [FRE 701] because Officer Thompson was not a percipient witness to the conversations, his testimony was based on the investigation as a whole, [and] his interpretation of vague testimony usurped the jury’s role as trier of fact . . . .” Id. at *10.

Held: “Because we rejected this precise argument [regarding FRE 701 and percipient witnesses] in Kevin Freeman, 498 F.3d at 904-05, the district court did not plainly err in not striking Officer Thompson’s testimony on this ground.”  

Of Note: In a compelling dissent, Judge Berzon waves the en banc flag while dissecting the shortcomings of the Ninth’s decision in Freeman. Id. at *27 (Berzon, J., dissenting). You’ll recall the government dodged the reversal bullet on the use of an “expert” to interpret coded calls, because it was harmless error review. See blog on the 2007 Freeman case here.  
  Freeman, observes Judge Freeman, runs afoul of three other circuits that have “severely restricted the ability of officers to testify on the basis of information not before the jury.” Id. at *29 (discussing Sixth, D.C., and Second Circuit decisions). As a result, the Ninth’s case law has “sanctioned a major breakdown in the limits properly placed on lay opinion testimony.” Id. “Kevin Freeman allows the jury’s critical fact-finding role to be usurped by law enforcement testimony based on evidence not presented at trial. As other circuits have held, this procedure has no basis in the Federal Rules of Evidence, undermines trial by jury, and cannot be allowed.” Id. at *34. 

 Judge Berzon correctly argues that “Kevin Freeman should be revisited by an en banc court, perhaps in this case.” Id. at *27. Knock wood her Ninth colleagues agree. 

How to Use: If you’re trying to get in the helpful statements of a witness who has now taken the Fifth, read the disappointing analysis of the decision at *4-*6. Judge Ikuta rejects Gadson’s attempts to admit his brother’s inculpatory statements (when his brother later took the Fifth). Id. The case is a frustrating limitation on the due process right to present a defense by presenting (self-inculpatory) hearsay from a witness who has invoked.                                                

For Further Reading: Cops “interpreting” recorded calls for the jury as lay witnesses under FRE 701: a big problem, and a big evidentiary dispute. For a very interesting summary of the deep Circuit split on this issue, see Sixth Circuit Joins Five Other Circuits in Limiting Agent Lay Testimony Interpreting Recorded Conversations, available here.  
  This is a fuzzy corner of evidence (with rules developed in the context of harmless error litigation). This abuse of "cop lay witness" testimony under FRE 701 has important ramifications: the Ninth’s should heed Judge Berzon's call to revisit Kevin Freeman en banc in the context of Gadson.

Image of inmates call on jail phones from the excellent article “Stupid and Unjust: The Highway Robbery of Prison Phone Rates, at  .

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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