uring criminal and civil litigation, police officers on the witness stand are sometimes asked to offer their opinions. According to two recent state court rulings, some officers who offer opinion testimony are expert witnesses and should be presented as such.
Recent Court Rulings: Some Officer Opinion Testimony Is Expert Testimony
The intermediate appellate court in Maryland recently found that a trial court committed reversible error when it admitted, in a prosecution for distribution of a controlled dangerous substance, opinion testimony of two police officers as lay opinions. The court ruled that because the officers' opinion testimony was validated by and based on their specialized knowledge, skill, training, and experience, it was more properly characterized as expert opinion testimony.
The case was Ragland v. State, a prosecution that arose from a drug surveillance operation.1 Police officers watched a suspect they knew from prior drug arrests make a telephone call from a payphone. They followed him as he drove to a nearby location, where he made another short telephone call. They continued to follow him until he stopped and made a transaction with the passenger of a yellow Cadillac that had just arrived. Neither officer was able to see either suspect or the items that had been exchanged because of darkness, but one officer saw that the Cadillac passenger was wearing a hat.
After the transaction, the officers stopped the first suspect vehicle and recovered from the driver one rock of crack cocaine. Other police officers stopped the yellow Cadillac and arrested its three occupants, including Ragland. Ragland was seated in the front passenger seat and was wearing a hat. The police searched Ragland and recovered a folding pocketknife and $59 in cash. From the car they recovered a cell phone, the records of which later documented the two telephone calls from the first suspect. They did not find any drugs in the car or on the suspects.
When one of the officers who had observed these events, Officer Bledsoe, testified at trial, the prosecutor asked about his special training in the investigation of drug crimes and inquired about his experience in the field of drug enforcement. The prosecutor then asked the officer if what he had seen "had any significance" to him, to which he answered "Yes." The prosecutor then asked the officer what he believed had occurred, at which point the defense attorney objected.
The attorney argued to the judge that the prosecution was seeking to have the officer's expert opinion admitted even though the state had not identified him as an expert in pretrial discovery. The prosecutor contended that the opinion was not an expert opinion but a lay witness opinion arising from the witness' firsthand observations.
The court agreed with the prosecutor and allowed the officer to testify: "In my opinion what occurred was a drug transaction."
The state had a second detective testify likewise, over the defense counsel's objection. Because the buyer of the cocaine proved to be an unreliable witness, the state's case rested heavily on the opinion testimony of the two officers, and Ragland was convicted of a distribution charge.
Before the appellate court, Ragland argued that when the detectives testified, they expressed expert opinions. He contended that the testimony should not have been admitted because the state had not identified the officers as experts before trial, provided the discovery required by the Maryland rules,2 or qualified them as experts at trial.
The appellate court agreed: "Where a witness has firsthand knowledge of the events that form the subject of his or her testimony, may the witness offer, as 'lay opinion testimony,' opinions formed about those events based on specialized knowledge, skill, experience, training, or education?"3
A Colorado court recently considered this issue in a case in which an officer testified about the conclusions he made after conducting an accident reconstruction investigation.4 In that case, the officer, who had not been qualified as an expert, was allowed to offer his opinion about how an automobile collision had occurred. The appellate court held that the trial court had abused its discretion in admitting the officer's expert testimony in the form of lay opinion testimony.
Similarly, the Maryland court in Ragland held that when opinion testimony is based on specialized knowledge, skill, experience, training, or education it is a form of expert testimony subject to procedural and evidentiary rules that do not apply to lay opinion testimony. As in many states, the applicable rules of procedure in Maryland and Colorado are essentially equivalent to the relevant federal court rules. Both of the state courts referred to the federal rules and commentaries in deciding their cases.
Different Rules for Expert Testimony
Lay opinion testimony is admissible under Federal Rule of Evidence 701,5 while Rule 702 governs the admission of expert testimony.6 Lay opinion testimony is rationally based on the perceptions of the witness and concerns such matters as the appearance of persons or things, degrees of light or dark, estimates of weight, time, or speed, the emotional state of a person, the value of certain property, and so forth.7 These are opinions that arise from the observations a witness makes and his interpretations of those events based on common sense and experience.
Expert testimony is testimony that seeks to explain matters beyond the usual comprehension or knowledge of a typical jury. It is based on specialized knowledge, training, experience, or skills, the application of which will help the jury understand the evidence. Expert testimony is not confined to events perceived by the witness but may arise from hypothetical propositions or be based on the witness's study of the evidence provided by other witnesses in the case.8
This distinction is not always clear, and the opinions offered by police officers in criminal prosecutions and civil litigation cases may fall within both of these categories. A witness who has observed an event about which he or she intends to testify may also have opinions about the interpretation of those events. When the ability of the witness to form such opinions is because of some special training, skill, or knowledge that he possesses, a court may deem that he is actually presenting expert testimony. Although Rule 702 states that only a witness qualified as an expert may (as opposed to must) testify in the form of an opinion, other procedural and discovery rules will apply and must be followed if the witness expects to offer testimony based on his specialized knowledge.
The Colorado court noted that the application of Rule 701 to police testimony has generated much confusion and controversy.9 It is commonplace that experienced officers will offer during testimony their opinions about the meaning or significance of evidence, and that these opinions are usually viewed as being lay opinions. But the Colorado Supreme Court determined that where an officer's testimony is based "not only on her perception and observations of the crime scene but also on her specialized training or education, she must be properly qualified as an expert before offering testimony that amounts to expert testimony."10
When to Present an Officer as an Expert Witness
The party presenting the witness must determine whether the witness is to be identified as an expert before trial. If the witness's personal observation will be a sufficient basis for offering a lay opinion, the party need only comply with the requirements of Rule 701. But if the witness is going to express opinions on matters that are "beyond the realm of common experience," he must be presented as an expert witness.11 If this is the case, the party presenting the witness must follow the mandates of Rule 702. This determination is critical to the proper preparation of the case, to the obligation to provide notice and pretrial discovery, and to the qualification of the witness at trial.
If an officer who is presented as a lay witness offers opinion testimony, the opposing party may object on the grounds that what is essentially expert testimony is being improperly admitted "under the guise of lay opinions."12 The admission of the testimony could be deemed improper if it tends to "subvert the disclosure and discovery requirements of [the rules of procedure] and the reliability requirements for expert testimony."13 Absent compliance with these expert testimony requirements, the procedural due process rights of the party challenging the evidence may be compromised.
Challenges to Expert Testimony
An expert witness is also vulnerable to being challenged by the opposing party in ways that the lay witness is not, particularly in federal court. Expert testimony must meet certain rather stringent criteria of reliability and relevance and an expert must possess sufficient credentials before the court will recognize him as an expert.14
The Rule 702 requirements, in federal court and to the extent that they apply analogously in state courts, could tend to burden criminal prosecutors with a new and enhanced obligation to provide pretrial identification of expert witnesses, to disclose the substance of their anticipated testimony, and to take the time and attention to put on the record sufficient evidence of the witness' qualifications as an expert.
The requirements could also put pressure on law enforcement agencies to assign to every operation and investigation an officer who could qualify as an expert witness should the prosecution need to call one. In cases where no officer who perceived the events is qualified to offer an opinion about the events, the government may need to obtain the services of an independent expert to analyze the investigation and offer an expert opinion.
Implications for Police and Prosecutors
It remains to be seen whether these two state court rulings indicate a trend toward treating as expert witnesses police officers who have specialized knowledge. On the one hand, stringent rules governing expert witness testimony could make criminal prosecutions more difficult.
On the other hand, treating officers as expert witnesses enhances the prestige of the profession and may ultimately strengthen particular prosecutions. And because courts allow expert witnesses to explain their opinions in court, police officers who have been qualified as expert witnesses have the opportunity during testimony to educate judges and juries about the challenges of detecting, investigating, and prosecuting crimes. ■