Court-Martial Trial Practice Blog
After an extensive investigation involving numerous intercepted recordings, to what extent can an agent provide opinion testimony about the meaning of the recordings? In reversing a conviction for a murder for hire conspiracy, the Sixth Circuit joins five other circuits (Second, Fourth, Eighth, Ninth and D.C.) in disallowingFRE 701 to permit an investigating officer to provide lay opinion testimony as to the meaning and significance of the recorded conversations of the conspirators; an insufficient foundation had been established to show the witness had first hand knowledge which would be “helpful in resolving issues” in the case; case highlights a split in the circuits, in United States v. Freeman, _ F.3d _ (6th Cir. Sept. 13, 2013) (No. 11-1798)
Law enforcement lay opinion testimony must meet the requirementss of FRE 701. The rule imposes three requirements: (1) the lay opinion must satisfy the “requirement of first-hand knowledge or observation,” under FRE 701(a); (2) the lay opinion must be “helpful in resolving issues” in the case, under FRE 701(b); and (3) the testimony but “not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702” under FRE 701(c). The circuits have taken differing positions as to the satisfaction of the first two requirements in the context of law enforcement lay opinion testimony. The Sixth Circuit recently reviewed this authority and noted a division among the circuits as to admission of law enforcement lay opinion testimony.
h/t federal evidence review