In a number of earlier posts, we have examined the shifting and variable analyses of lower courts seeking to apply the Supreme Court's case of Crawford v. Washington, 541 U.S. 36 (2004) and its progeny.  In attempting to determine the admissibility of testimonial statements from out-of-court declarants who have not been subject to cross-examination, one recurring fact pattern concerns law enforcement agents proffered as expert witnesses at trial as to the modus operandi of various criminal organizations.  Prosecutors often seek to elicit agent-expert testimony about the patterns of conduct of drug organizations, organized crime groups, and tax evaders, hoping of course to have the agent-expert sketch out a course of conduct which just happens to mirror the activities of the defendant on trial, without  having the agent-expert improperly testify that the particular defendant exhibited those very guilty behaviors or possessed the mens rea necessary to prove commission of the charged offenses. 

On some level it is nonsense to treat such "expert" testimony as necessary to inform lay jurors of the workings of drug dealers and the like.  It is a legal fiction in which courts engage that jurors in a trial involving, say, charges of drug distribution against a defendant arrested after patrolling a given street corner with a vicious dog at his side can non-prejudicially hear and be neutrally helped by such "expert" testimony, which does not name the particular defendant, but which describes the unfailing tendency of persons engaged in drug distribution to patrol street corners with vicious dogs at their side.

For Confrontation Clause purposes, a further question concerns the source of information informing the so-called "expert" agent testimony.  Given Crawford's prohibition against testimony which repeats out-of-court statements made by persons not subject to cross-examination, one might wonder how a law enforcement agent could come to hold such expertise other than predominantly by interviewing numerous drug sellers in order to learn the tricks of their trade through their out-of-court statements to him/her.  Courts of appeal which have applied the Crawford analysis to such "expert" testimony have largely concluded that as long as the agent-expert is expressing his/her independent judgment, based on training and experience, and is not channeling the testimonial statements of numerous prior witnesses whom he/she has interviewed over time, then the testimony passes the Crawford  Sixth Amendment test.

So, in United States v. Gomez, 2013 WL 3988705 (9th Cir., Aug. 6, 2013), the Ninth Circuit recently affirmed the conviction of a drug courier caught with methamphetamine in the gas tank of his car crossing into the United States, who testified at trial to his lack of knowledge of the drugs.  An agent-expert was permitted to testify that drug-trafficking organizations do not use unknowing couriers. This "expert" testimony directly refuted Gomez's testimony as to lack of knowledge but without controverting the legal fiction that the agent-expert did not characterize Gomez as a liar and did not compel the jurors to any particular conclusion about Gomez but simply helped them as triers of fact to better understand the workings of drug organizations.  

Since the questions put by the prosecutor to the agent-expert were all framed so that the witness would answer only in terms of his "experience," not forbidden testimonial statements of others, the Ninth Circuit held that there was no Confrontation Clause violation.  The Gomez court joined a host of other circuit courts in applying the same standard – treating the invocation of "experience and training" as a talisman signaling no improper reliance on out-of-court declarations – and cited like cases from the First, Second, Fourth, Seventh, and Tenth Circuits.  In short, as long as careful prosecutors use the appropriate foundational verbiage in their questions, agents will be permitted in the guise of sharing their "experience" to relate what they have learned in innumerable out-of-court interviews of unnamed and uncross-examined declarants.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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