A frequent occurrence at trial is the presentation of the "officer expert" – a police officer or agent who testifies about aspects of a criminal scheme that are outside the experience of a typical juror, such as organizational hierarchies or jargon used by the participants.  The problem with this kind of testimony, as the Second Circuit noted yesterday in United States v. Mejia, 05-2856-cr, 2008 WL 4459289 (2d Cir. October 6, 2008), is that "[w]hen case agents testify as experts, they gain 'unmerited credibility when testifying about factual matters from first-hand knowledge.'"  In Mejia, the Court has given eloquent expression to the defense's objection to such evidence:

[The use of officer-expert evidence] must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization's hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence. If the officer expert strays beyond the bounds of appropriately "expert" matters, that officer becomes, rather than a sociologist describing the inner workings of a closed community, a chronicler of the recent past whose pronouncements on elements of the charged offense serve as shortcuts to proving guilt . . .

The Government cannot satisfy its burden of proof by taking the easy route of calling an "expert" whose expertise happens to be the defendant.

Facts

Mejia and his co-defendants were charged with various violent acts that supported the notorious MS-13 gang.  At trial, the government presented the testimony of Hector Alicea, a police officer, as an expert witness on MS-13's background, "its history, its presence on Long Island, and its national and international presence; about the gang's colors, hand signs, graffiti use, naming practices, and tattoos; and about its local subunit structure, leadership structure, division of responsibilities, and membership rules."  In addition, Alicea testified to more specific details about MS-13's operations: how they traveled to other states, their attendance at organizational meetings and how they spent money on guns and narcotics.  He also summarized specifics of the investigation, including firarms and ammunition seizures, arrest for narcotics trafficking, and the numbers of murders MS-13 had allegedly committed on Long Island between June 2000 and the trial.  The defendants were convicted on all counts.

Holding

Vacating the convictions, the Court agreed with the defendants' objections to Alicea’s testimony.  The Court found the testimony problematic on three levels (and non-harmless error):

• Alicea testified about facts that were "well within the grasp of the average juror" – such as statistics from the investigation of this case about actual firearms seizures, arrests for narcotics trafficking, and commission of murders.  "No expertise is required to understand any of these facts."  In effect acting as a "case-agent," " [t]hose parts of [Alicea's] testimony that involved purely factual matters, as well as those in which [he] simply summarized the results of the Task Force investigation, fell far beyond the proper bounds of expert testimony."

• Some of Alicea's testimony involved "merely repeating information he had read or heard – information he learned from witnesses through custodial interrogations, newspaper articles, police reports, and tape recordings:"  While experts may rely on hearsay evidence and "analyze" or "synthesize" this evidence, "[t]he expert may not, however, simply transmit that hearsay to the jury."

• Alicea’s testimony improperly communicated out-of-court testimonial statements of cooperating witnesses and confidential informants under the guise of expert testimony, in violation of the Confrontation Clause and the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36 (2004).  Significantly, the Court went on to point out that since Alicea clearly communicated one fact to the jury that he had learned from a co-conspirator's proffer statements (a very specific fact regarding MS-13’s tax policies), "[t]his impugn[ed] the legitimacy of all of his testimony and strongly suggests that Alicea was 'simply summarizing an investigation by others that was not part of the record,' and presenting it 'in the guise of an expert opinion.'"

Comment

This case highlights how cavalier the government has become in presenting officer-expert testimony, to the extent that it, in this case, the government back-doored a co-conspirator's proffer statements through the so-called "expert."  The case is an important reminder of the importance of exploring the basis for this testimony (as the defense lawyers did so impressively here) and objecting to it, while simultaneously providing terrific ammunition in ensuring that that objection is heard.  Practitioners should be especially wary of prosecutors' efforts to end-run the holding in this case, by getting their "expert-officer" to present all his/her improper facts via some bogus "synthesizing" questions.

The crime scene described at the beginning of United States v. Williams, 05-6036-cr (2d Cir. October 23, 2007), is just the kind in this age of CSI to have juries agog for forensic evidence to pinpoint the perpetrators: "a gelid night," "the ringing sound of gunshots," two fleeing mystery shooters, a Ford Bronco filled with "bullet-riddled bodies."  But as a recent article points out, Devil in A White Coat: The Temptation of Forensic Science in the Age of CSI, 41 New Eng. L. Rev. 503 (2007), forensic evidence is not scientific truth.  Forensic "experts" are usually technicians with little more than a college degree and often less.  They are trained in police laboratories that frequently lack any accreditation or peer review process, do not engage in blind testing, have shockingly high error rates (if such rates are tested at all), and fail to follow the basic principle of scientific inquiry: subjecting one's findings to repeated attempts at refutation.  In fact, as the article notes, quoting The Coming Paradigm Shift in Forensic Identification Science, 309 Science 892 (2005), "[f]alse or misleading testimony by forensic investigators is 'the second most common contributing factor to wrongful convictions, found in 63% of the cases.'"

But forensic practices based on subjective visual and impressionistic comparisons - such as ballistics, handwriting analysis, voice identification and hair comparison - are routinely admitted in criminal cases, and their routine admission becomes itself a self-justifying rationale.

In Williams, the district court permitted the government to present the testimony of a ballistics expert.  It also denied the defense request for a hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to challenge the reliability of that testimony.  Relying on a 2002 SDNY decision, among others, the district court held that ballistics is a proper subject of expert testimony, and the defense had failed to offer a reason "for us to depart from the reasoning of these cases." 

On appeal, the Second Circuit affirmed the ruling.  It found that the district court had adequately discharged its "gatekeeping" function under Daubert by relying both on the 2002 SDNY decision, which admitted a government ballistics expert based on the government's written submission, and the government's "exhaustive foundation for [the expert's] expertise" before presenting the expert's testimony to the jury.  The Court held that Daubert did not require the district court to hold a separate hearing to ascertain the reliability of the witness's methodology.

But lest the Court be deemed to have ratified echo-chamber jurisprudence, there is an important caveat in the decision that practitioners should be sure to quote in their Daubert motions: "We do not wish this opinion to be taken as saying that any proffered ballistic expert should be routinely admitted . . . [Daubert's] shift to a more permissive approach to expert testimony did not abrogate the district court's gatekeeping function.  Nor did it 'grandfather' or protect from Daubert scrutiny evidence that had previously been admitted [prior to the adoption of Rule 702].  Thus, expert testimony long assumed reliable before Rule 702 must nonetheless be subject to the careful examination that Daubert . . . require[s]."  And by implication, of course, expert testimony long assumed reliable post Rule 702 and Daubert, should similarly be subject to careful re-examination in light of emerging technology and expertise.

At the very least, given how significant forensic evidence in criminal cases has become, it is really time for forensic laboratories to institute a routine policy of blind testing (i.e. presenting the technician with a mixture of crime-related evidence and dummy evidence, without designating the items the investigating officer wants to match), similar to a line-up for identification purposes.  This will address one of the most frequently cited problems with forensic labs -- their lack of independence from their clients and associated "tunnel vision," where the analysis is skewed in favor of the match the client is seeking.