United States v. Mejia, et al., No. 05-2856-cr (2nd Cir., Oct. 6, 2008)
In a decision that was more than a year in the making, the Second Circuit today limited the use of expert testimony by police officers. The court ruled that law enforcement experts should not be used to introduce direct evidence in the case, but rather should be limited to helping the jury understand the direct evidence. Also, the expert cannot be used for the purpose of introducing hearsay statements.
Two MS-13 members were tried for gang-related shootings. The prosecution sought to prove a critical element — acts and threats of murder, as an element of racketeering — almost entirely through expert testimony of a police officer. Apart from the expert’s testimony, there was no other evidence of murder, and only indirect evidence of threats.
There was no problem with permitting a law-enforcement officer to testify as an expert. The problem was that his testimony went beyond the permissible scope of expert testimony, and that hearsay he offered violated the Confrontation Clause.
Instead of providing background information and explanations that would help the jury understand the direct evidence, the expert gave factual direct testimony as a “case agent” summarizing the ongoing investigation of which this case was a part. The witness was offered solely as an expert, but then gave factual testimony of facts in this case. When case agents testify as experts, their credibility is given an unfair boost with the jury.
Summarizing the ongoing investigation essentially turned the trial into a grand jury proceeding, by letting the witness introduce evidence of other witnesses not part of the record. Letting the expert-only witness testify about this case gave him unmerited extra credibility. The testimony thus exceeded the bounds of expert testimony, in violation of Fed. R. Evid. 702.
The testimony also violated the Confrontation Clause by its reliance and repetition of out-of-court statements made by others during interrogations. Custodial statements are testimonial. Summarizing the hearsay from other people’s investigations that were not part of the record, and presenting it in the guise of an expert opinion, does not make the hearsay statements any less inadmissible. This violates the rule of Crawford and Fed. R. Evid. 703.
The error was not harmless, and so all of the convictions were vacated, and the case remanded for new trial.
Because this decision is based largely on Crawford, it will probably have an impact on State prosecutions as well. For example, it is common in New York drug trials for the arresting officer or undercover to testify in part as eyewitnesses and in part as experts explaining what their testimony means to the jury. State courts might start limiting such testimony with decisions like this one.