Fake Cop “Experts”: Some Good and Bad Cases.
- There are bad cases allowing cop “expert” testimony about, inter alia, gang members lying for each other, the value of drugs, quantities of drugs that are typically intended for distribution, drug trafficking organizations not using unknowing couriers, and other types of modus operandi testimony, though remember these cases hold only it wasn’t an abuse of discretion to admit such testimony, not that it had to be admitted.
- There are good cases holding it an abuse of discretion to admit cop “expert” testimony about, inter alia, the meaning of certain words in recorded coconspirator conversations, at least without a description of the methodology; the defendant fitting a “drug courier profile”; and the structure of drug trafficking organizations, at least where the case isn’t about a particularly complex organization.
- There’s also a couple of helpful procedural cases, including one finding an abuse of discretion in letting a cop “expert” testify about hearsay on which he based his opinion, and one requiring discovery of information that might support a helpful defense expert opinion.
NOW THE BLOG:
In the last two posts, I talked about some general standards the case law has created and applied to cop “expert” testimony. Today, I thought I’d include some examples of specific cases on specific testimony. But in considering these, remember the point I made at the end of each of the last two posts. All these cases hold – at least the ones where the court of appeals didn’t reverse the district court – is that the district court didn’t abuse its discretion by admitting the testimony. They by no means hold it would have been an abuse of discretion to exclude the testimony. In most instances, the court probably could have gone either way without abusing its discretion. Finding no abuse of discretion simply means, as the Ninth Circuit put it in Speiser, Krause & Madole, P.C. v. Ortiz, 271 F.3d 884 (9th Cir. 2001),“that within substantial margins the district court could be upheld had it determined the issue one way or the other.” Id. at 887 (emphasis added). So a case the government points to that allowed some other district court to admit the testimony doesn’t mean your district court has to admit it.
With that caveat, let me give you some examples of, if not “The Good, the Bad, and the Ugly,” at least the bad (but with the caveat in the preceding paragraph) and the good. A case on the bad side is one of the cases discussed in the post four weeks ago – United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000). The court held in Hankey that it wasn’t an abuse of discretion to admit cop “expert” testimony that two defense witnesses were members of the same gang as the defendant and that gang members would not testify against each other and/or would lie for each other. See id. at 1168-72. The court held similarly in United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004), holding it wasn’t an abuse of discretion to admit cop “expert” testimony that gang members at a lower level in the hierarchy of the gang would take the blame for higher status members. See id. at 1090, 1094.
In one of the other cases discussed in the post four weeks ago – United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000) – the court held it was not an abuse of discretion to admit cop “expert” testimony about the wholesale value of marijuana at various stages of the smuggling and distribution process. There are also cases holding it was not an abuse of discretion to admit testimony that the quantity of drugs the defendant possessed is typically intended for distribution rather than personal possession, see United States v. Younger, 398 F.3d 1179, 1189-90 (9th Cir. 2005); United States v. Gonzalez, 307 F.3d 906, 911-12 (9th Cir. 2002), and/or that drug trafficking organizations usually don’t use unknowing couriers, see United States v. Sepulveda-Barraza, 645 F.3d 1066, 1072-73 (9th Cir. 2011); United States v. Murillo, 255 F.3d 1169, 1178 (9th Cir. 2001). The Ninth Circuit reasoned this testimony was admissible despite a rule precluding expert testimony about a defendant’s mental state, see Fed. R. Evid. 704(b), because that rule bars only direct testimony about the defendant’s mental state or testimony from which an inference about the defendant’s mental state necessarily follows, see United States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997) (en banc). And the admission of various types of modus operandi testimony also has been approved, though in pre-Daubert cases. See United States v. Gil, 58 F.3d 1414, 1422 (9th Cir. 1995) (collecting examples).
On the other side of the coin, there are a few good cases, holding not only that cop “expert” evidence shouldn’t have been admitted, but finding it rose to the level of an abuse of discretion to admit it. One pair of cases is the two good cases discussed in the post four weeks ago – United States v. Vera, 770 F.3d 1232 (9th Cir. 2015), and United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002). Those cases held it was an abuse of discretion to admit cop “expert” opinion testimony about the meaning of certain words in recorded defendant or coconspirator conversations, at least without a description of a methodology supporting the opinion. See Vera, 770 F.3d at 1247-49; Hermanek, 289 F.3d at 1093-96. Compare United States v. DeCoud, 456 F.3d 996, 1013-14 (9th Cir. 2006) (distinguishing Hermanek because methodology was described and it supported opinion about words’ meaning); see also United States v. Reed, 575 F.3d 900, 922-23 (9th Cir. 2009) (also holding no abuse of discretion to admit testimony about “drug jargon”).
There’s also a good line of cases holding evidence the defendant fit a “drug courier profile” shouldn’t be admitted, though there are exceptions where the case is particularly complex and/or the defense opens the door by suggesting he doesn’t exhibit the characteristics of a drug courier. See United States v. Baron, 94 F.3d 1312, 1319-20 (9th Cir. 1996); United States v. Lim, 984 F.2d 331, 335 (9th Cir. 1993); United States v. Lui, 941 F.2d 844, 847-48 (9th Cir. 1991). Then there’s a good line of cases holding the government can’t introduce general evidence about the structure of drug trafficking organizations, at least where the case isn’t about a particularly complex organization. See United States v. Vallejo, 237 F.3d 1008, 1016-17 (9th Cir. 2001). See also United States v. Pineda-Torres, 287 F.3d 860, 864-65 (9th Cir. 2002); United States v. Varela-Rivera, 279 F.3d 1174, 1179 (9th Cir. 2002); United States v. McGowan, 274 F.3d 1251, 1254 (9th Cir. 2001). But cf. Sepulveda-Barraza, 645 F.3d at 1071 (suggesting the foregoing cases are based on “fact-specific inquiries into the circumstances of each case”).
There’s also a good case out there on a procedural point. Rule 703 of the Federal Rules of Evidence allows experts, presumably including cop “experts,” to rely on inadmissible evidence, such as hearsay evidence, if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” But that inadmissible evidence may be disclosed to the jury “only if [its] probative value in helping the jury evaluate the opinion substantially outweighs [its] prejudicial effect.” Fed. R. Evid. 703. The Ninth Circuit applied this rule in United States v. Cazares, 788 F.3d 956 (9th Cir. 2015), to hold it was an abuse of discretion to allow a cop “expert” there to testify about his identification of gang members based on hearsay from other officers. See id. at 978.
Finally, there’s a case suggesting we can turn overly liberal admission of cop “expert” testimony against the government. In United States v. Stever, 603 F.3d 747 (9th Cir. 2010), the court held the defendant was entitled to discovery of any documents the government might have that showed Mexican drug trafficking organizations trespass on land without the owners’ knowledge, showed characteristics of such organizations that were consistent with the defense, or showed such organizations are secretive and familial and unlikely to have involved someone like the defendant. See id. at 753. The court held such evidence would be discoverable because it would be relevant and thereby implicitly recognized it might also be admissible. See id. So we can use the cases more liberally allowing cop “expert” evidence to argue for discovery from the government. In a similar vein, we might also use those cases to support an argument for presenting testimony from an expert of our own, at least if we can find one who will support our theory.
In any event, there’s a few good cases to work with and a few bad cases to work against. But on the bad cases, remember the caveat that the only thing the bad cases decide is it wasn’t an abuse of discretion to admit the evidence in question.