Because our appellate courts often find the Fourth Circuit's opinions to be persuasive authority, I read all the Fourth Circuit's published criminal cases. Yesterday, the court decided United States v. Johnson, a drug case involving two noteworthy issues. The short version of the facts is as follows: Officers wiretapped a suspected drug dealer's phone. The suspect had several conversations with the defendant. The conversations consisted of slang that the officers interpreted as evidence of a drug conspiracy. The defendant was arrested and charged accordingly, and the case proceeded to trial. The government's evidence consisted largely of (1) the recorded conversations, plus testimony from an officer about the meaning of the slang used in the recordings, and (2) evidence about the defendant's prior drug activity, admitted under Fed. R. Evid. 404(b). The defendant was convicted and appealed, but the Fourth Circuit reversed. First, it found that the trial court erred in admitting the officer's testimony. It reasoned that (a) the officer was not offered as an expert, so his testimony was admissible, if at all, as lay opinion under Fed. R. Evid. 701; (b) Rule 701 allows lay opinion only if it is based on a witness's personal knowledge and observations; and (c) the officer testified that he knew the meaning of the slang based on his training and experience, not his personal observations. Thus, his testimony was "expert testimony dressed in lay witness clothing," and was inadmissible. Despite that characterization, the court stated that the testimony would not have been admissible [...]
Faculty Coordinators
