EWG Blog > Law and Legal > Law enforcement expert witness cannot be admitted under Rule 701: Sixth Circuit
Law enforcement expert witness cannot be admitted under Rule 701: Sixth Circuit
- Nov
- 12
- Posted by Shweta Nawani
- Posted in Law and Legal Expert Witnesses, Police Expert Witness
The Sixth Circuit has remanded the case of U.S. v. Freeman back for new trial as Michigan district court erroneously admitted a law enforcement expert witness testimony under Rule 701. The prosecution failed to establish proper foundation for lay testimony given by the FBI Agent, said the Court of Appeals, and added that such improper admission was not harmless.Particulars of the case
After a jury trial, Defendant–Appellant Marcus Freeman was convicted under 18 U.S.C. § 1958 for conspiracy to use interstate commerce facilities in the commission of murder for hire and received a sentence of life without parole. He then brought a direct appeal from that conviction, arguing that the district court erred (1) by permitting the FBI Agent in charge of the investigation to give lay testimony under Federal Rule of Evidence 701, (2) with respect to various other evidentiary rulings, (3) by declining to amend the jury instructions according to Freeman’s requests, and (4) as there was insufficient evidence to sustain Freeman’s conviction.
What did the FBI Agent testify about?
The government’s primary evidence against Defendant consisted of 23,000 phone conversations, 77 of which were admitted as exhibits at trial and played for the jury. The FBI Agent working on the case was called in to testify regarding his personal impressions of the recorded conversations and his testimony ranged from voice and nickname identifications to substantive interpretations of the meaning of the various statements in order to broadly illustrate the prosecution’s theory of the case for the jury.
However, while the Agent was qualified as an expert to testify to the meaning of specific code words and drug slang, both parties recognized that his testimony had moved outside the scope of his expert qualification. In fact at oral argument, the Government conceded that the Agent lacked the first-hand knowledge required to lay a sufficient foundation for his testimony under Rule 701(a).
