Like most of the rest of the country, I followed the recent confirmation hearings for Judge (now Justice) Kavanaugh with great interest.

As the readers of this blog already know, Dr. Christine Blasey Ford testified before the Senate Judiciary Committee that Judge Kavanaugh sexually assaulted her in high school. Much of her testimony recounted her recollection of that event, but some of her testimony was of a different nature. In addition to telling the Committee what she recalled, Dr. Ford also described the biological and chemical processes of memory itself, such as the way that neurotransmitters encode memories into the hippocampus.

In other words, Dr. Ford testified in dual roles: she was both a fact witness and a de facto expert witness.

Most of us will never participate in a Supreme Court confirmation hearing, but a similar type of dual testimony can arise in criminal trials in state court, and it raises some interesting issues.

Dual Testimony in North Carolina

Although we often speak in general terms about “fact witnesses” and “expert witnesses,” the state routinely elicits both lay testimony and expert testimony from a single witness during a criminal trial. For example, the arresting officer in a DWI case might first offer lay testimony pursuant to Rules 401 and 602 about any relevant factual matters of which she has personal knowledge (stopping the vehicle, administering field sobriety tests, and talking to the defendant), and then offer expert testimony under Rule 702(a1) regarding the administration and results of an HGN test.

But what about when the state tenders one of the investigating officers in the case as an expert witness, based on training and experience, in a “Criminal Practices” field. North Carolina courts have allowed this type of expert testimony in a wide range of cases, such as allowing a qualified witness to describe the methods, habits, and tools of the trade for drug traffickers, see State v. Moore, 152 N.C. App. 156 (2002), to interpret slang or code words used by gang members, see State v. Brockett, 185 N.C. App. 18 (2007), or to explain the techniques that criminals use to hide their activities online, see State v. Jennings, 209 N.C. App. 329 (2011).

Jeff Welty previously blogged about gang experts here, and Jessie Smith covered the topic of “Crime and Criminal Practices” in more detail in her Benchbook entry on Expert Testimony here. In short, as long as the state lays a proper foundation for both types of testimony (personal knowledge for the factual testimony, and adequate qualifications for the expert opinion testimony), there is nothing inherently wrong with this strategy.

There is, however, a risk that the line between the two types of testimony may get blurred. Suppose the detective who investigated a drug trafficking case is also tendered as an expert in the “routine practices of drug traffickers.” The detective then testifies at trial that the plastic baggies found on the defendant’s kitchen table “were going to be used to package and sell the cocaine.” Is that factual testimony based on his personal knowledge gained during the course of the investigation, or is it opinion testimony based on the detective’s prior training and experience?

What About “Triple Testimony?”

A further complication shows up when we factor in lay opinion testimony under Rule 701. Under that rule, if a witness is not testifying as an expert, then his or her opinions or inferences are supposed to be limited to those which are “rationally based on the perception of the witness” and “helpful to a clear understanding of his testimony or the determination of a fact in issue.” But see Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 175, at 3 (6th ed. 2004) (recognizing that “[t]here is no precise definition of either ‘facts’ or ‘opinions,’ and no precise line is drawn between them”).

Applying that rule, several North Carolina cases have found that testimony from an officer about topics such as the routine habits and practices of drug dealers is admissible as a lay opinion based on the officer’s “personal observations and experience.” See, e.g., State v. Hargrave, 198 N.C. App. 579 (2009) (officers permitted to give lay opinion “based on personal knowledge of drug practices” that cocaine appeared to be packaged for sale, and the cash found on defendant indicated he was selling the drugs); State v. Bunch, 104 N.C. App. 106 (1991) (officer’s testimony “that it was common practice in drug transactions in Ahoskie for one person to hold the money and for another person to carry the drugs” was admissible as lay opinion); see also State v. Bracamontes, 181 N.C. App. 149 (2007) (unpublished) (citing Bunch, allowing lay opinion that one person typically held the money while the other held the drugs, and “the purpose for such practice was that in the event of an arrest, one individual would not have possession of both the money and the drugs”).

Returning to the detective-expert example above, let’s assume the witness testifies at trial that Defendant A was acting as a lookout, Defendant B was a runner for the customers, and Defendant C was holding the stash of drugs up on the porch. Is that: (i) factual testimony based on the detective’s personal observations during surveillance; (ii) a lay opinion based on his personal experience, to help summarize and explain those observations for the jury; or (iii) an expert opinion based on his training and experience regarding the way that drug dealers typically operate?

Maybe it’s a jumbled combination of all three….

So the Line Gets Blurred – Who Cares?

Well, the court might. If a lay witness strays too far into expert opinion territory, that testimony might be excluded (or provide grounds for appeal) if the state has not laid a proper foundation for it and complied with any other statutory expert witness requirements, such as giving notice and providing a copy of any reports to the defense.

More significantly, as Jessie Smith noted in the Benchbook entry cited above, some courts have held that when the state fails to clearly distinguish between a witness’s factual or lay testimony and his or her expert opinion testimony, there is a risk of prejudice to the defendant because the jury may be “smitten by an expert’s ‘aura of special reliability’ and therefore give his factual testimony undue weight.” United States v. York, 572 F.3d 415 (7th Cir. 2009), quoting United States v. Brown, 7 F.3d 648 (7th Cir. 1993). The Fourth Circuit has also reversed convictions under this rationale. See United States v. Garcia, 752 F.3d 382 (4th Cir. 2014) (conviction vacated due to inadequate safeguards to protect jury in drug prosecution from conflating federal agent’s testimony as both a decoding expert and a fact witness – agent moved back and forth between expert and fact testimony with no distinction in prosecutor’s questioning or in agent’s answers, and the record did not demonstrate whether agent’s conclusions were based on her independent assessments of the words used or based on her after-the-fact debriefing of non-testifying co-conspirators).

I am not aware of any North Carolina cases that directly echo the holdings in those federal cases, but our appellate courts have found prejudice under somewhat similar theories in other cases. See, e.g., State v. Bush, 164 N.C. App. 254 (2004) (defendant was prejudiced when state’s medical expert offered unsupported opinion that sexual abuse did occur, because the “practical effect” of the expert’s testimony was to give the victim’s factual testimony “a stamp of credibility by an expert”).

What Should the State Do About It?

A few simple precautions should help prosecutors steer clear of any pitfalls in this area.

Plan and Notice:  First, if the state intends to solicit an expert opinion from a “fact witness,” the prosecutor must comply with the statutory requirements regarding discovery and notice of expert witnesses. See, e.g., G.S. 15A-903(a)(2) (state’s disclosure of expert witnesses). Otherwise, the testimony may be excluded at trial or provide grounds for an appeal.

Second Witness: Alternatively, the state could simply call a second witness to provide the expert opinion. For example, the detective who worked on the case could testify about finding the baggies and scales on the defendant’s kitchen table, and then a second experienced detective could be called to testify exclusively as an expert witness and explain the significance of those items to the jury.

Keep it Clean: Most importantly, if the state proceeds with presenting multiple types of testimony through a single witness, the prosecutor needs to carefully distinguish which type of testimony is currently being offered, and clearly indicate on the record whenever the witness is moving from one type to another. As long as the prosecutor keeps the categories of testimony distinct and separate, it should not warrant an objection at trial or risk error on appeal. See United States v. Palacios, 677 F.3d 234 (4th Cir. 2012) (no error where state’s witness testified as both an expert in gangs generally, and as one of the investigators in the case at issue: “The district court permitted Norris to testify in both capacities, but it required the government to indicate when it was transitioning from Norris’s expert opinion to his personal observations.”).

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