Evidence:
Article VI-VII - Witness and Expert
Sixth Circuit Decisions
• 602 - Personal KnowledgeU.S. v. Sandles, 02-2466 (11/27/06)
> During defendant’s trial on a bank robbery charge, the bank security investigator testified that the bank was FDIC insured based upon the following: (1) she knew that the bank had been FDIC insured for 23 years, (2) she had seen FDIC stickers at the bank, and (3) she was not certain as to the meaning of the FDIC certificate that was dated 1987 (13 years before the robbery). Defendant objected that the witness lacked personal knowledge under FRE 602 to attest to the bank’s FDIC status. Upon defendant’s conviction, he appealed.
* Holding: The court concluded that the government failed to establish that the witness’ testimony that the bank was FDIC insured at the time of the robbery was based upon the witness’ personal knowledge under FRE 602. First, generally working at the bank for 23 years and believing that it was FDIC insured was insufficient to establish personal knowledge. Second, seeing the FDIC stickers, in and of itself, was insufficient to establish that the bank was actually FDIC insured. Third, the witness’ admission that she was unsure of the meaning of the FDIC certificate confirmed that she did not have the requisite personal knowledge. Accordingly, the court ruled that the district court erred in permitting the witness to testify about the bank’s FDIC insurance.
• 607 - Attacking Credibility
U.S. v. Ross, 05-4469 (9/21/07)
> Defendant was charged with two counts of bank fraud for depositing counterfeit checks into his bank account and withdrawing the funds. At trial, he testified regarding a personal bankruptcy that he filed and indicated that the counterfeits checks drove he and people he owed into bankruptcy. He also testified that he listed all of his personal creditors, including friends and family, on his bankruptcy petition. On cross examination, the government asked him about several creditors who were left off of his bankruptcy petition. Defendant objected to the line of questioning, claiming that it was evidence of prior bad acts, prohibited by FRE 404(b). The district court permitted the cross examination, defendant was convicted, and he appealed.
* Holding: Pursuant to FRE 607, the credibility of a witness may be attacked by any party. The court held that defendant opened the door to the prosecutor’s line of questioning by discussing the creditors listed in his bankruptcy petition. Thus, the cross examination was a proper attack on the credibility of defendant’s testimony, pursuant to FRE 607. Thus, the district court’s ruling was affirmed.
• 608(b) - Specific Instances of Conduct
U.S. v. Seymour, 05-1643 (10/27/06)
> Defendant was charged with sexual assault on federal property and at trial he attempted to introduce the testimony of a witness to show that he and the victim were intimate with each two years after the alleged sexual assault. The district court excluded the testimony based, in part, upon FRE 608(b). Defendant appealed.
* Holding: FRE 608(b) bars the admission of extrinsic evidence of specific instances of conduct intended to attack a witness’ character for truthfulness. The court held that the extrinsic evidence of the victim’s intimacy with defendant was offered to attack the victim’s truthfulness and was accordingly properly excluded under FRE 608(b). The court noted that defendant may have offered the evidence under FRE 412 to show consent by the victim, but that defendant had not met the pretrial notice requirements of the rule.
• 608(b)(1) - Character for Truthfulness
U.S. v. Holden, 07-5573 (2/24/09)
> Defendant was charged with falsifying facts in a matter within the jurisdiction of the EPA. At trial, defendant offered evidence of a witness’ drug use and treatment nine years prior. The district court excluded the evidence, defendant was convicted, and he appealed.
* Holding: FRE 608(b)(1) allows a witness’ credibility to be attacked on cross examination though specific instances of conduct, if related to untruthfulness. The court held that prior drug use generally is not relevant to a witness’ character for truthfulness. Instead, such evidence may be relevant to a witness’ ability to “perceive the underlying events and testify lucidly at trial.” In the case, the court found that the prior drug use, and corresponding memory loss, were from nine years prior to the events at issue in the trial. As such, the court held that the evidence was too “remote in time and laden with potential unfair prejudice” to be admissible. Accordingly, the district court ruling was affirmed.
• 609 - Impeachment by Prior Conviction
U.S. v. Kemp, 07-5837 (11/14/08)
> Defendant was charged with being a felon in possession of a firearm. At trial, defendant testified that he possessed the gun out of necessity. In response, the government cross examined defendant regarding his prior felony convictions for taking indecent liberties with a minor. Defendant’s only objection to the impeachment was the age of the prior convictions. The district court admitted the evidence and defendant was convicted. Defendant argued on appeal that the probative value of the convictions was outweighed by their prejudicial effect.
* Holding: First, the court noted that defendant and the government entered into an Old Chief stipulation at trial, thus the nature of the prior convictions was not admissible to prove the prior-conviction element of the charge. Second, the court found that the district court provided no justification as to why the high prejudicial effect of the prior convictions did not outweigh the probative impeachment value. Nonetheless, the court ruled that, because defendant did not lodge an objection regarding the prejudicial effect of the evidence, plain error review applied. As such, the court found that under the “exceedingly deferential” standard of review, it could not conclude that the admission of the convictions was “manifestly incorrect.” Thus, defendant’s conviction was affirmed.
• 609 - Impeachment by Prior Conviction
U.S. v. Gunter, 07-5277 (1/8/09)
> Defendant was charged with participating in a drug conspiracy and moved to exclude his prior theft conviction. The district court denied the motion and ruled that the theft conviction was admissible under FRE 609 if defendant testified. Defendant did not testify at trial and he was convicted. Defendant appealed and argued that the district court’s pretrial ruling was error.
* Holding: The court held that defendant waived his right to appeal the pretrial ruling because he did not testify at trial. The court found that the pretrial ruling did not prevent defendant from testifying, and accordingly his failure to do so waived the issue. Thus, defendant’s conviction was affirmed.
• 611(a)/607 - Rebuttal Witnesses
U.S. v. Rayborn, 05-6894 (7/26/07)
> Defendant was charged with arson for setting fire to his church and with mail fraud for claiming the insurance proceeds. At trial, the government offered a rebuttal witness who ended up being hostile to the government. The government then called a second rebuttal witness to impeach the credibility of the first rebuttal witness. Defendant objected to the calling of the second witness, but the district court permitted the testimony. Upon his conviction, defendant appealed.
* Holding: FRE 611(a) gives the district court discretion in exercising control over the presentation of witnesses. FRE 607 permits a party to impeach its own witness. In the case, the court held that the district court had the discretion, but was not required, to limit the scope of the government’s rebuttal testimony only to that which was directed at rebutting new evidence offered by the defense in its case in chief. In the end, the court found no abuse of discretion in permitting the government to call the rebuttal witnesses.
• 615 - Sequestration of Witnesses
U.S. v. Guthrie, 07-6215 (3/2/09)
> Defendant was charged with car-jacking and firearm offenses. During trial, the district court called a recess at the end of the day, but during defendant’s cross examination of the witness. Defendant requested that the prosecutor not be permitted to speak with the witness during the recess. The district court denied defendant’s request, and stated that the prosecutor could have conversations with the witness, but that he could not “coach the witness.” The district court indicated that defendant could inquire the following day as to whether any improper interaction occurred regarding the witness. Defendant asked no questions on the subject the next day. Defendant was convicted and he appealed.
* Holding: FRE 615 requires the sequestration of witnesses so that they “cannot hear the testimony of other witnesses.” The court held that the district court properly addressed the concerns of FRE 615 by limiting the prosecutor from coaching the witness during the recess. Further, the court found that defendant failed to question the witness as to whether any improper interaction occurred. Accordingly, the district court’s ruling was affirmed.
• 701 - Lay Witness Identification Testimony
U.S. v. Dixon, 04-5670 (6/27/05)
> Surveillance photos captured pictures of a bank extortionist. Defendant was charged with attempted bank extortion, and the government proposed to present the testimony of three witnesses who knew defendant and would say that it was defendant in the bank surveillance photos. The district court ruled pretrial that the three witnesses’ testimony identifying defendant was not admissible, and the government appealed.
* Holding: Pursuant to FRE 701(b), lay witness testimony identifying a suspect in a picture is only admissible if “there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.” The court considers four factors: (1) the witness’ familiarity with the defendant’s appearance; (2) such familiarity at the time the photo was taken; (3) whether the defendant disguised her appearance at the time of the photo; and (4) whether defendant changed appearance prior to trial. Regarding two of the witnesses, the court held that neither of the witnesses were familiar with defendant at the time the picture was taken, that the picture of the robber was a clear shot from the waist up, and that defendant had not altered his appearance prior to trial. Thus, the testimony of the two witnesses was inadmissible.
Regarding the third witness, the testimony was properly excluded because substantial questions of bias regarding the witness could not be explored by defendant because of the potential prejudicial effect on defendant’s case. In order to effectively cross examine the witness’ bias, defendant would have to bring up issues of spousal abuse and nonpayment of child support. Thus, the court affirmed the district court’s ruling excluding all of the testimony.
• 701 - Lay Witness Identification Testimony
U.S. v. Perry, 04-4506 (2/24/06)
> Defendant was charged with bank robbery and at trial the government presented testimony of three of defendant’s friends who identified defendant in a bank surveillance photo. Defendant argued on appeal that the testimony was improper.
* Holding: Pursuant to FRE 701, opinion testimony from a lay person is admissible if it (1) is rationally based on the perception of the witness and (2) is helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. The court found that the bank surveillance photo did not, by itself, identify defendant as the robber. Accordingly, the court found that the testimony of the defendant’s friends aided the jury in determining whether defendant was the robber. Thus, the testimony was proper.
• 701 - Lay Opinion Testimony
U.S. v. Ahmed, 05-2319 (12/29/06)
> Defendant was charged with making false statements on his application for employment with the Transportation Security Administration (TSA). During trial, an assistant security director testified that she reviewed defendant’s application and determined that the statements were false, and that such determination influenced the TSA’s employment suitability determination. Defendant was convicted and argued on appeal that the witness’ testimony was not proper lay opinion testimony under FRE 701.
* Holding: Under FRE 701(a), lay opinion testimony is permissible where it is (1) rationally based on the witness’ perception, (2) helpful to an understanding of a fact in issue, and (3) not properly the subject of expert testimony. The court found the testimony proper because (1) the witness was involved in the review of the application, (2) materiality of the statements was at issue in the case and the witness’ testimony showed why the statements were important to the TSA, and (3) the testimony was not in the realm of expert testimony. The court acknowledged that the use of lay witness testimony to provide a legal conclusion is disfavored in the Sixth Circuit. Nonetheless, even though falsity is an element of a false statement prosecution and the witness characterized defendant’s statements as “false,” the court held that the witness’ testimony was nothing more than a “non-technical expression of her informed opinion” and was not improper. Further, the court noted that no limiting instruction was requested by the defense. Accordingly, the admission of the testimony was affirmed.
• 701 - Lay Opinion Testimony
U.S. v. White, 05-3403 (6/11/07)
> Defendant was charged with medicare fraud and at trial the government introduced the testimony of several “Fiscal Intermediary Witnesses” who provided testimony about the structure and procedures inherent in the medicare program, as well as their understanding of various terms that were relevant to the prosecution. The witnesses also were fact witnesses to defendant’s fraudulent activities. Because the government did not provide Fed. R. Crim. P. 16 notice of the witnesses as experts, defendant objected to their testimony at trial as being improper lay witness testimony. The district court overruled defendant’s objections, defendant was convicted, and he appealed.
* Holding: FRE 701 permits lay witness testimony in the form of opinion as long as the testimony is (1) rationally based on the perception of the witness, (2) helpful to a clear understanding of the witness’ testimony or a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge within the scope of FRE 702. In the case, the court found that the witnesses’ testimony regarding the structure and procedures of the medicare program and their explanation of the meaning of certain terms was specialized knowledge acquired over years of experience and was more properly considered expert testimony. Thus, the court held that the district court erred in admitting the testimony as lay opinion under FRE 701.
Nonetheless, the court noted that errors in evidentiary rulings only constitute reversible error where they were likely to have a substantial effect on the jury verdict. Here, the court found that the error did not affect defendant’s substantial rights. The court reached this conclusion by considering three factors: (1) the relation of the wrongful evidence to the critical question for the jury; (2) the importance of the evidence; and (3) the closeness of the case. In the case, the court found that the witness’ testimony largely related to background issues and that the other evidence in the case was overwhelming against defendant. Accordingly, even though the government failed to provide proper notice of the expert testimony, the error was harmless and the conviction was affirmed.
• 702 - Expert Testimony
U.S. v. Lopez-Medina, 05-5891 (8/25/06)
> Defendant was charged with a drug conspiracy and at trial the government presented the testimony of two DEA agents who testified both as fact and expert witnesses. The expert testimony explained use of counter surveillance measures and details about how drug dealers conduct their business. Defendant did not request, nor did the district court provide, any limiting instructions on the dual role of the DEA witnesses or on the use of expert testimony. Defendant was convicted and he appealed.
* Holding: Applying the plain error standard, the court found that the district court’s failure to provide any form of cautionary instruction regarding the witnesses’ dual role or on the use of expert testimony was error. Further, the court emphasized that the presentation of the testimony of the DEA agents was such that there was no demarcation between the fact and expert portions of the testimony. Based upon this error, and other evidentiary errors (See supra), the court held that defendant’s case had been prejudiced such that reversal of the conviction was warranted.
• 702/Fed.R.Crim.P 16-Expert Testimony
U.S. v. Ganier, 05-6350 (11/15/06)
> On the first day of defendant’s trial for obstruction of justice charges, the government notified defendant and the court of its intent to present expert testimony regarding a forensic search of defendant’s computer. Defendant moved to exclude the testimony because it was expert testimony under FRE 702 and it was not provided in advance of trial pursuant to Fed. R. Crim. P. 16. The district court excluded the evidence and the government filed an interlocutory appeal.
* Holding: First, the court held that the proposed testimony was, in fact, expert testimony under FRE 702. The testimony would have identified the results of a forensic examination of defendant’s computer that revealed different searches defendant had conducted on his computer for terms that were related to the government’s subpoenas. The court found that this forensic examination required knowledge “well beyond that of the average layperson,” and thus was expert testimony. Second, the court concluded that the government had violated Fed. R. Crim. P. 16 by failing to provide an advance written summary of the testimony to the defense. Third, the court ruled that exclusion of the evidence was not the appropriate remedy. In assessing whether exclusion is appropriate, the court must consider (1) the reasons for the government’s delay and whether it was intentional or in bad faith, (2) any prejudice to the defendant, and (3) whether the prejudice can be cured with a less severe sanction. In the case, the court ruled that the district court had not considered whether less severe sanctions would be appropriate, and thus, the court remanded the issue for reconsideration.
• 702/704 - Expert Testimony
U.S. v. Winkle, 04-4196 (2/21/07)
> Defendant was charged with bank fraud for a check kiting scheme wherein he and another car dealer created numerous fake vehicle trades between their dealerships. At trial, the government introduced the testimony of an expert who discussed the nature of defendant’s transactions, explained the mechanics of a check kiting scheme, and provided his opinion that defendant had kited checks. Defendant was convicted and argued on appeal that the expert testimony should not have been admitted.
* Holding: First, the court held that, pursuant to FRE 702, the witness was properly qualified by training and experience, even though he was not a CPA. Second, the court found that his explanation of check kiting was proper under FRE 702 because it was helpful to assist the jury to understand the complexities of check kiting. Third, the court ruled that the expert testimony about the ultimate issue – whether check kiting actually occurred – was proper under FRE 704(a) because the witness did not testify as to defendant’s state of mind or guilt, but only that the activity constituted check kiting. Accordingly, admission of the testimony was affirmed.
• 702 - Expert Testimony
U.S. v. Johnson, 05-4277 (5/25/07)
> Defendant was charged with drug trafficking and firearms offenses and at trial the government offered the testimony of an officer who was qualified as an expert in “street-level narcotics transactions and the behaviors that accompany that activity.” Defendant’s counsel did not object to the qualification of the expert nor the district court’s indication to the jury that the witness was so qualified. The witness then testified that, from his observations, defendant had been engaged in drug trafficking activities on the front porch of a home and that defendant was the man in charge. Upon defendant’s conviction, he appealed.
* Holding: The court found no plain error in the witness’ qualification as an expert or the witness’ opinion that what he observed appeared to be drug-trafficking activities. The court noted, however, that there are limitations on an expert testifying about the ultimate issue in a case, including FRE 701 and 702 requirements that the opinion must be helpful to the trier of fact, and FRE 403 requirements that the evidence not be unduly confusing, wasteful of time, or unduly prejudicial. The trial attorney, however, had not objected on any of these grounds and because the expert had not testified as to his opinion about defendant’s guilt or the credibility of other witnesses, the court found no plain error. Finally, the court emphasized that a district court should not declare before the jury its opinion that a witness is qualified as an expert. Again, defendant did not object to the procedure and the court found no plain error. Thus, defendant’s conviction was affirmed.
• 702 - Expert Testimony
U.S. v. Martin, 06-5605 (3/31/08)
> Defendant was charged with multiple counts of distributing crack, being a felon in possession of a firearm, and possessing a firearm in furtherance of drug trafficking. At trial, the government presented the testimony of a police officer who testified both as a fact witness and an expert. The expert portion of the testimony entailed describing the tools of the drug trade, providing an opinion that the amount of drugs involved in the case was a distribution amount, and detailing how firearms are often used in the drug trade. Defendant failed to object to the dual nature of the testimony or request a cautionary instruction. Defendant was convicted of all counts except for possession of the firearm in furtherance of drug trafficking. Defendant appealed.
* Holding: Because defendant failed to object in the district court, the court applied plain error review. Relying on the court’s decision in U.S. v. Lopez-Medina (See P.V., Issue # 9), the court held that a cautionary instruction is required where a fact witness also testifies as an expert. The court found no plain error, however, because defendant’s substantial rights were not violated. Distinguishing the case from Lopez-Medina, the court ruled that no other error was committed during the course of the trial, strong evidence other than the officer’s testimony supported defendant’s convictions, and the jury actually chose not to credit some of the expert testimony in acquitting defendant for possession of a firearm in furtherance of drug trafficking. Accordingly, the convictions were affirmed.
• 702 - Expert Witnesses
U.S. v. Vasquez, 07-1248 (3/23/09)
> During defendant’s drug trafficking trial, the government called an agent who testified both as an expert and a fact witness. The district court provided no limiting instruction regarding the testimony, but defendant did not object. Defendant was convicted and he appealed.
* Holding: The court held that the district court erred in failing to provide a limiting instruction where an expert witness testified also as a fact witness. The court found that the error was not plain, however, because the district court provided general instructions about consideration of witness testimony, no other evidentiary errors were committed during trial, and the evidence against defendant was more than sufficient. Accordingly, defendant’s conviction was affirmed.
• 702 - Expert Witnesses - Notice
U.S. v. White, 07-2404 (4/16/09)
> Defendant was charged with narcotic and weapon violations and the government sought to introduce expert testimony regarding the tools of the drug trade found on defendant. Defendant objected on the grounds that he received no notice of the testimony, but neither requested a continuance nor challenged the qualifications of the expert. Defendant was convicted and he appealed.
* Holding: The court first held that the government is required to provide a written summary of any expert testimony that the government intends to use in it case in chief at trial under FRE 702, 703, and 705. In the case, the court found, however, that defendant had not shown any prejudice to his case. Defendant neither requested a continuance in order to be prepared for the evidence, nor did he argue that the experts were not qualified to testify as to the subject matter. The court also noted that testimony regarding tools of the drug trade has become “utterly routine” in drug prosecutions and that experienced defense counsel should expect such testimony. Accordingly, defendant’s conviction was affirmed.
• 702 - Expert Testimony
U.S. v. Martinez, 06-3882 (12/1/09)
> Defendant was charged with health care fraud which resulted in the death of two patients. At trial, the government presented an expert who testified that the victims’ overdoses resulted from the medication prescribed by defendant. This opinion was based on the doctor’s review of the toxicology reports and the patients’ medical files. Defendant objected to the expert testimony, he was convicted, and he appealed.
* Holding: The court held that, in admitting expert testimony under FRE 702, the court must focus “solely on principles and methodology, not on the conclusions that they generate,” and the court must confirm that the “factual underpinnings of the expert’s opinions were sound.” The court found that the expert’s testimony was properly admitted because it was based on a proper review of the pertinent records for each patient. Further, the court held that any error in the admission of the testimony was harmless because other evidence established that defendant’s entire course of treatment, not simply the oral prescriptions, cause the patients’ deaths. Accordingly, defendant’s conviction was affirmed.
• 704 - Opinion Testimony
U.S. v. Safa, 06-1187 (5/11/07)
> Defendant was charged with perjury for lying to the grand jury. At trial, an Assistant Untied States Attorney (AUSA) testified about defendant’s grand jury testimony and indicated that defendant’s testimony, if false, would have impeded the grand jury investigation. The district court then sustained defendant’s objection when the AUSA was asked to define “materiality” in relation to statements to a grand jury. Defendant was convicted and argued on appeal that the AUSA’s testimony about the potential effect on the grand jury was improper lay opinion testimony on the ultimate issue.
* Holding: When providing lay opinion testimony under FRE 704, a witness is not precluded from talking about the ultimate issue to be decided by the jury. The witness may not, however, provide “opinions phrased in terms of inadequately explored legal criteria.” In the case, the court held that the district court had properly prevented the AUSA from testifying as to the legal definition of materiality. Further, the court found that permitting the AUSA to discuss the factual basis and potential effect the false statements would have on the grand jury was proper because, without the testimony, the jury would have had no basis for the relevance of the false grand jury testimony in respect to the government’s investigation. Thus, the district court’s ruling was affirmed.
• Fed. R. Crim. P. 16(a)(1)(G) - Discovery
U.S. v. Davis, 06-5883 (1/30/08)
> Defendant was charged with two counts of drug trafficking and the government notified defendant that it intended to introduce expert chemist testimony to establish the weight of the drug, and that the drug was crack cocaine. Defendant specifically requested, pursuant to Rule 16(a)(1)(G), reports and results showing the tests and examinations conducted by the expert. Prior to trial, the government provided a letter to defendant which stated only that the chemist’s testimony would be based upon his training, experience and numerous tests conducted. At trial, defendant objected to the expert testimony upon the basis that the government did not comply with Rule 16. At that time, the government obtained from the expert the notes which reflected the tests conducted and turned them over to defendant. Defendant moved to exclude the expert, and declined the district court’s invitation for a continuance to prepare. The district court denied defendant’s motion, defendant was convicted, and he appealed.
* Holding: The court first held that the government violated Fed. R. Crim. P. 16(a)(1)(G) by failing to obtain and produce the “bases and reasons” for the expert opinions prior to trial. Second, the court held that a district court must consider several factors in determining whether to suppress evidence as the result of a discovery violation: (1) the reasons for the delay in production and whether the government acted intentionally or in bad faith; (2) the degree of prejudice to defendant; and (3) whether the prejudice could be cured by granting a continuance, or some other less severe sanction. The court found that defendant’s act of declining a continuance was tantamount to an agreement that the verdict would not have been different had the government timely complied with Rule 16. Further, the court noted that defendant offered no other reasonable alternative to suppression of the evidence. Thus, the conviction was affirmed.