Confrontation Clause Permits Agent To Testify As Expert On Use Of Drug Couriers Based On His 'Experience And Training'

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...