Evidence - Rule 701 – Opinion Testimony

United States v. Groysman, 766 F.3d 147 (2d Cir. 2014)

The Second Circuit reversed this health care fraud conviction on the basis of several “egregious” evidentiary errors committed at trial. The defendant was charged with conspiring with a company that supplied durable medical equipment to prepare false invoices. The wholesaler was cooperating and taped many of the conversations, though many were inaudible. The government offered testimony from its case agent for several days at the start of trial. The agent (1) offered inadmissible bolstering testimony by testifying that certain transactions occurred, based only on his interviews of the cooperators – he had no personal knowledge to verify that these transactions occurred; (2) offered a summary chart which was not a summary of voluminous evidence, but simply a recitation of what he was supposedly told by the cooperators, thus violating both the hearsay rules and the bolstering rules and the rule governing the admissibility of summary charts; (3) the use of the agent to summarize the case at the outset was improper because it amounted to opinion testimony. The Second Circuit, as noted above, characterized these evidentiary errors as egregious and supported a plain error standard of review reversal.

United States v. Miller, 738 F.3d 361 (D.C. Cir. 2013)

The FBI agent should not have been permitted to offer opinion testimony about the meaning of telephone calls and about the overall course of the investigation.

United States v. Freeman, 730 F.3d 590 (6th Cir. 2013)

The government was improperly permitted to offer lay opinion testimony from an FBI agent who testified about his interpretation of phone calls from two conspirators who were involved in a murder for hire. Throughout his testimony, the agent testified that his basis for his opinion testimony was what he and his colleagues learned during the course of the investigation. His testimony also implied that he knew additional information that the jury did not know that allowed him to reach these conclusions. Finally, some of the conversations being “interpreted” by the agent needed not interpretation or explanation, such as explaining the term “situation” and other easily understood statements of the people talking on the phone.

United States v. Haynes, 729 F.3d 178 (2d Cir. 2013)

A police officer was permitted to offer testimony about how a gas tank works (i.e., how the fuel gauge reflects the amount of fuel in the tank), which was relevant to whether the defendant was aware that drugs were hidden in the fuel tank. The testimony should not have been admitted as opinion testimony. The testimony should only have been offered as expert testimony after the discovery rules and the witness’s expertise was proven. Another witness – the government’s expert witness – was improperly permitted to offer expert testimony that the defendant was aware that there were drugs in the gas tank. This testimony was inadmissible pursuant to Rule 704(b), which prohibits expert testimony on a defendant’s mental state at the time of a crime.

United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013)

The testimony of an FBI agent, interpreting and explaining recorded phone conversations of the defendants was inadmissible and admitting this testimony was reversible error. The government offered the testimony as lay opinion testimony, with the agent explaining that he formed his opinion about the meaning of the conversations based on having listened to countless hours of the conspirators’ conversations.

United States v. Fenzl, 670 F.3d 778 (7th Cir. 2012)

In this fraud case (which essentially involved an unusual bid-rigging scheme), the government called a City Investigator to testify whether the Procurement Department would have awarded the contract to the defendant if it had known of the misrepresentation that was made in a certification document. The Seventh Circuit held that allowing this testimony was reversible error. It was not proper “opinion” testimony as claimed by the government, because the investigator was not offering an opinion based on something that he observed.

United States v. Vazquez-Rivera, 665 F.3d 351 (1st Cir. 2011)

This was a child pornography in which the question at trial was whether the defendant was the person who was on the computer engaging in a chat with undercover agents and who knowingly possessed the illegal images. The defendant contended that other people in the house may have been the guilty party. At trial, the government called the lead agent to testify and she testified that “we” concluded that the defendant was the perpetrator. This type of question was asked repeatedly during the agent’s testimony. This was plain error. First, it offered the opinion testimony of other unidentified agents (i.e, “’we’ concluded”); second, it was the agent’s opinion, based on the same disputed testimony that the jury heard and was not helpful to the jury’s decision-making process and was therefore not admissible pursuant to Rule 701.

United States v. Meises, 645 F.3d 5 (1st Cir. 2011)

The government improperly began its presentation of the evidence with a “summary witness” who described the roles of the various defendants on trial. This was improper summary testimony, based on improper opinion testimony.

United States v. Goodman, 633 F.3d 963 (10th Cir. 2011)

The defendant relied on the insanity defense in this armed robbery case. The trial court barred the defense from introducing evidence of his combat experiences and his mental health around the time of his army experience. He had received extensive treatment for mental illness after returning from Iraq and clearly suffered from mental illness as a result of his combat experience. Limiting the “lay” witness testimony to his behavior at the time immediately surrounding the time of the robberies was reversible error. The defendant’s mental health a few years prior to the armed robberies was not irrelevant to his insanity defense. In addition, the trial court erred in barring the defense to offer lay “opinion” testimony about the defendant’s mental condition. Rule 704(a) specifically allows testimony in the form of an opinion that embraces an ultimate issue to be decided by the trier of fact. Rule 704(b), however, provides an exception for experts, who are not permitted to offer opinions as to the state of mind of a criminal defendant if that mental state is an element of the crime of which the defendant is accused.

United States v. Jadlowe, 628 F.3d 1 (1st Cir. 2010)

A police officer was improperly permitted to testify that in her opinion, the video of the perpetrator of the crime was the defendant (she compared the video with a recent driver’s license photo). There was no reason to introduce this opinion testimony, because the jury could have performed the same comparison. Harmless error.

United States v. Johnson, 617 F.3d 286 (4th Cir. 2010)

The government offered the testimony of a DEA agent to “interpret” and explain the meaning of wiretapped phone calls. The agent was never tendered as an expert. The testimony was not properly admitted as opinion testimony under Rule 701, because the agent did not observe the events about which he was testifying. Even if he had been tendered as an expert, the government did not offer any evidence explaining the agent’s “methodology or guiding principles that would enable him to decode the wiretapped phone calls in this case.”

United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)

The government offered the testimony of an expert in this gang case. The expert testimony about the structure of the gang, its history and various other matters that was inadmissible because (1) the testimony was not based on any data or information that was the proper subject of expert testimony; (2) the testimony included the expert’s lay opinion, rather than expert opinion; (3) the expert simply repeated some things he was told by co-conspirators and was therefore testimonial hearsay in violation of Crawford. Reversible error.

United States v. Garcia-Ortiz, 528 F.3d 74 (1st Cir. 2008)

The victim of an armed robbery was shown a picture of the defendant and another person. The victim identified the other person as the perpetrator. At trial, an FBI agent was permitted to offer his opinion that the person who was incorrectly identified actually resembled the defendant. This was improper opinion testimony, because the subject matter of the testimony was not beyond the jury’s purview. Harmless error.

United States v. Johnson, 529 F.3d 493 (2d Cir. 2008)

The DEA agent’s testimony was replete with improper hearsay, opinion, vouching, and argumentative testimony. The agent testified about the course of the investigation, declaring, “We found out that . . .” and “We determined that . . .” The agent related what co-conspirators told him when they were first arrested, to explain what he did next in the investigation. He then explained what “corroboration” meant and explained what he did and learned to corroborate what he was told by informants and co-conspirators. He further explained that he was skeptical of what informants told him until he corroborated what they said and he was then able to ensure that the informants told him the truth. While it may be more interesting to a jury to learn how the police conduct investigations, a substantial amount of this testimony was inadmissible. Because defense counsel did not object, the plain error standard applied and the Second Circuit held that the inadmissible evidence did not meet this standard.

United States v. Wantuch, 525 F.3d 505 (7th Cir. 2008)

It was improper to permit one witness to offer his opinion about the defendant’s knowledge that what they were doing was illegal. While the testimony may have been based on the witness’s perception, the testimony was unhelpful to the jury under Rule 701(b). The jury was equally capable of inferring that the defendant was conscious of the wrongfulness of his conduct. Harmless error.

United States v. Oriedo, 498 F.3d 593 (7th Cir. 2007)

Having failed to provide expert notice pursuant to Rule 16, the government sought to introduce an agent’s opinion about why baggies would be found in a drug dealer’s house as lay opinion testimony. The Seventh Circuit held that allowing the agent to testify about his opinion was erroneous, harmless.

United States v. Kaplan, 490 F.3d 110 (2d Cir. 2007)

The trial court erred in permitting a co-conspirator to testify that in his opinion, the defendant was a knowing participant in the fraud conspiracy. In a lengthy decision reviewing Rule 701’s requirements, the Second Circuit concluded that the witness, who based his “opinion” on the defendant’s intelligence and experience, as opposed to his own observations, could not offer opinion testimony under Rule 701.

United States v. Perkins, 470 F.3d 150 (4th Cir. 2006)

The defendant was charged with using excessive force against an arrestee. At trial, several officers were asked a hypothetical question about whether certain force would be appropriate in circumstances such as those that the testimony in this case described. This was improper lay “opinion” testimony and would only be permissible as expert opinion.

United States v. Van Eyl, 468 F.3d 428 (7th Cir. 2006)

The prosecutor’s closing argument advanced a theory of guilt that had previously been rejected by the trial court. The trial court acted within its discretion in granting a new trial. The prosecutor repeatedly referred to various witnesses’ lay opinion that the defendant’s conduct in this complex fraud trial was fraudulent. The prosecutor repeatedly referred to witnesses’ testimony that it did not take a CPA to tell the difference between right and wrong. The trial court had initially granted a motion in limine barring such opinion testimony from being offered by the government.

United States v. Garcia, 413 F.3d 201 (2d Cir. 2005)

A DEA agent may not testify, either as an expert, or as a matter of his lay opinion, about the defendant’s role in the conspiracy based on the totality of his experience. When an agent testifies as a matter of lay opinion, the opinion must be base on his personal observations, not his evaluation of all the evidence, or the totality of the investigation. This opinion explains in some detail the requirements for lay opinion testimony, and concludes that the government satisfied none of the requirements for offering lay opinion testimony.

United States v. Dixon, 413 F.3d 540 (6th Cir. 2005)

A man attempted to extort money from a bank and surveillance photos recorded his actions. The government offered the testimony of three witnesses who identified the defendant as the person in the surveillance photos, his son and two ex-wives. The evidence was not admissible pursuant to Rule 701, because the witnesses’ testimony was not likely to aid the jury. The witness’s acknowledged that they had not seen the defendant at the time of the crime and the video was of sufficiently good quality that the jury could make its own determination without the aid of the witnesses’ opinions. One ex-wife, moreover, had a tumultuous abusive relationship with the defendant and allowing her to testify would require exploring all these otherwise inadmissible matters (i.e., the defense would be required to cross-examine her about these allegations) thereby diminishing the value of her identification testimony.

United States v. Grinage, 390 F.3d 746 (2d Cir. 2004)

The Second Circuit reverses this conviction on the basis that an agent was permitted to testify about the meaning of wiretapped phone calls. The government argued that the agent was not qualified as an expert and did not purport to translate coded calls, but was simply offering opinion testimony based on a review of all the calls. The Second Circuit rejects these arguments. An agent may not offer his opinion of “all the calls” and ask the jury to accept that interpretation. Moreover, the agent was basing his testimony on more than simply his having listened to the calls; he testified that he based his opinion also on his knowledge of “the entire investigation.” Reversible error.

United States v. Hitt, 164 F.3d 1370 (11th Cir. 1999)

The defendant was charged with filing false claims with the Veterans Administration. The prosecutor asked witnesses questions such as, “If the defendant claimed that he had quit his job in March of 1979, is that correct or incorrect?” and “If he claimed that he lost total use of his right hand to his disabilities, is that true or false?” These questions were improper, because they sought the opinion testimony of the witnesses that focused on the very question being asked of the jury. These questions amounted to nothing more than lawyer argument – the prosecutor’s summation to the jury in advance. Harmless error.

United States v. Garcia, 291 F.3d 127 (2d Cir. 2002)

An informant recorded a call with the defendant in which the informant used code to discuss a multi-kilogram drug deal. At trial, the informant was permitted to offer his opinion that the defendant understood the code. This was error. There was no foundation offered to show that he had a basis for testifying about another person’s state of mind. There was no showing that they spoke in code before, that the code was common, or that the witness and the defendant had previously discussed using a code.

United States v. Casas, 356 F.3d 104 (1st Cir. 2004)

The government was improperly permitted to start the trial with a “summary” witness who provided an “overview” of the case. The agent offered testimony that was not based on his first-hand knowledge of the facts and amounted to conclusions regarding the conspiracy and its members. In addition, some of these conclusions were based on information he learned from cooperating witnesses who did not testify at trial. See also United States v. Flores-De-Jesus, 569 F.3d 8 (1st Cir. 2009).

United States v. Forrester, 60 F.3d 52 (2d Cir. 1995)

A witness claimed that she told the agent about the defendant’s participation in the drug conspiracy and also identified a photograph of the defendant for the agent. The agent then testified that he did not remember the witness saying this, or identifying the defendant. Nevertheless, when asked by the prosecutor, the agent gave his opinion that nothing the witness said in court was inconsistent with her statement at the time of the initial interview. The prosecutor claimed that this opinion testimony was admissible “to aid the jury” under Rule 701. This was erroneous. Far from being “helpful,” the agent’s testimony invaded the traditional province of the jury.

United States v. Riddle, 103 F.3d 423 (5th Cir. 1997)

Under Rule 701, lay opinion testimony must be based on personal perception and must be one that a normal person would form from those perceptions. In this case, a bank examiner exceeded these bounds by testifying about his opinion of prudent bank practices, as well as the legal requirements governing certain bank practices. He also asserted that in this case, the violation of these rules resulted in a bank failure.

United States v. Dotson, 799 F.2d 189 (5th Cir. 1986)

Three government agents who had only minimal contact with the defendants’ witnesses were permitted to testify that in their opinion, the defendant and his witnesses were untruthful and should not be believed by the jury. While the Court holds that this is not impermissible per se, in this case the agents had no basis on which to offer this opinion testimony.

Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988)

It was improper for a police officer to offer his opinion that the evidence in the case against other suspects was insufficient to justify their arrest.