Until recently, it was common practice in both state and federal courts to allow law enforcement case agents to testify as “expert witnesses” on the criminal organizations they were assigned to investigate.  Sometimes these agents spend years tracking and monitoring their assigned organized crime groups. Under the relaxed hearsay rules governing admission of “expert witness” testimony, pursuant to Rule 702 of the Federal Rules of Evidence, these police-expert witnesses were able to convey “opinions” about the organizational structure, jargon, and even codes of conduct of the criminal enterprise even if based on information obtained during custodial interrogations of informants.[i]  However, since Crawford v. Washington, 541 U.S. 36 (2004), the United States Court of Appeals for the Second Circuit has held that the Confrontation Clause limits the permissible use of this type of testimony.

To begin, Crawford holds that anytime the government seeks to introduce evidence of a statement made by a witness to members of law enforcement during a criminal investigation, and the defendant has not previously had an opportunity to cross-examine the witness, the Confrontation Clause requires the production of the witness in order for the statement to be admissible against the defendant at trial. Crawford overruled Ohio v. Roberts, 448 U.S. 56, and its “indicia of reliability” test, and instead adopted a strict functional analysis of the core evils the Confrontation Clause was designed to guard against, namely, Star Chamber proceedings and trials without the right to confront the accuser.

Based on Crawford, the Second Circuit, in United States v. Mejia, 545 F.3d 179, 191 (2^nd Cir. 2008), modified its prior jurisprudence by significantly limiting the practical use of government case agents as expert witnesses on organized crime groups.[ii] Specifically, Mejia held unconstitutional the admission of a police officer’s expert testimony concerning the code of conduct among members of the street gang MS-13 where that knowledge was based in part on custodial interrogations of MS-13 members. Mejia, 545 F.3d at 187. Agent Alicea, a case agent called by the government as an expert witness on MS-13, testified as a “de facto case agent in providing . . . summary information to the jury” of the ongoing investigation into MS-13’s activities on Long Island. 545 F.3d at 196. Because much of his summary was based on interrogations of MS-13 gang members and other informants, the agent’s “expert opinion” was held to have violated both the confrontation clause and the rule against hearsay, notwithstanding the fact that “experts” on organized crime groups typically rely on in-custody (“testimonial”) debriefings of informants in arriving at their expert findings. Id. 197-98.

The court further held that because Agent Alicia’s testimony was based in part on interrogations he and other law enforcement agents had with the informants, allowing him to give expert opinions based on information provided by those informants impermissibly bolstered the testimonies of the informants, namely, that MS-13 members gain status in the gang by committing acts of violence against members of other gangs. By a parity of reasoning, this same impermissible bolstering also increased the likelihood that the jury would give “unmerited credibility” to the testimony of an expert witness who was also a “case agent” in the case.  Mejia, 545 F.3d at 192. See also United States v. Dukagjini, 326 F.3d  45, 54 (2^nd Cir. 2003) (allowing expert witness to also testify as a fact witness creates grave danger of unfair prejudice).[iii]

Finally, the court went on to hold that Agent Alicia’s expert testimony came “dangerously close” to opining on an ultimate issue in the case, namely, whether the defendant committed murder for the specific purposes of obtaining respect and status in the gang. Mejia, 545 F.3d at 187, 191 (“The Government cannot satisfy its burden of proof by taking the easy route of calling an ‘expert’ whose expertise happens to be the defendant”).

The question that remains is whether the Confrontation Clause permits a case agent who testifies as expert witness to base his or her expert opinion on statements made by an informant without revealing the identity of the informant. In United States v. Law, 528 F.3d 888, 912 (D.C. Cir. 2008), the Court of Appeals for the District of Columbia upheld a conviction where the district court had allowed a police expert to testify “about the typical operations of narcotics dealers.” Law held that only testimonial statements attributed (or perhaps attributable to) a nontestifying witness fall within the prohibition of the Confrontation Clause. Hence, merely making statements of alleged fact without the prohibited attribution does not violate Crawford.

However, it is questionable whether sanitizing a police-expert witness’s testimony in that manner can ever obviate the confrontation clause problem since it effectively immunizes the expert witness from meaningful cross examination. Any attempt by the defense to probe the bases of the so-called expert opinion would itself open the door to the expert blurting out on cross examination, or divulging on redirect examination, that his or her opinion is based on testimonial statements of co-conspirators and/or other uncalled witnesses. Such a dilemma would eviscerate the defendant ‘s constitutional right to meaningfully cross-examine the expert witness.  See, e.g., Davis v. Alaska, 415 U.S. 308, 317 (1974) (holding that the Confrontation Clause “means more than being allowed to confront the witness physically”; rather, it includes the right of the defense to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness”);  cf. In re Zyprexa Products Liability Litigation, 489 F. Supp.2d 230, 283 (E.D.N.Y. 2007 – Weinstein, J.) (“The most challenging and controversial gatekeeping role [of the judge under Daubert]  . . . is that of ascertaining the reliability of proffered testimony, or ‘whether the reasoning or methodology underlying the testimony is scientifically valid’” [quoting Daubert v. Merrell Dow Pharm., Inc, 509 U.S. 579, 592 (1993]).

            Moreover, to hoist a criminal defendant upon the horns of a government-created dilemma of having to choose between either giving up the right to meaningful cross-examination of the expert witness, or else risk having the witness reveal the testimonial nature of the information that constitute the bases of the expert’s “opinion,” would fly in the fact of the well-regarded maxim that what the government “may not do directly it may not do indirectly.” Vinluan v. Doyle, 60 A.D.3d 237, 246 (2^nd Dep’t 2009) (quoting Bailey v. Alabama, 219 U.S. 219, 244 (1911]).

The Second Circuit may already have disapproved of the reasoning in Law by its statement in Mejia that merely because Agent Alicia did not specifically mention interrogations during his testimony did not obviate the error.  Id. 197-99 (“We are at a loss in understanding how Alicea might have ‘applied his expertise’ to these statements [of acts of violence by MS-13 members] before conveying them to the jury, such that he could have avoided ‘conveying the substance of those statements to the jury’”).  See also, United States v. Lombardozzi, 499 F.3d 61, 73-74 (2^nd Cir. 2007), where the court held that the district court did not commit plain error in admitting the expert testimony because the expert’s testimony “was fully supported by evidence that in no way can be considered testimonial” (emphasis supplied).  Accord United States v. Goosby, 523 F.3d 632, 638 (6^th Cir. 2008) (“There is no confrontation clause violation because Gibeault did not make statements that would be characterized as testimonial hearsay”).

Analogously, in Melendez-Diaz v. Massachusetts, 557 U.S. _ (decided June 25, 2009), the Supreme Court recently rejected a claim that a laboratory report that had attached to it an affidavit from a lab technician identifying the substance in defendant’s possession as being cocaine was admissible as a “business record” on the grounds that the affidavit was testimonial in that it was  “‘calculated for use essentially in the court, and not in the business’” (quoting Palmer v. Hoffman, 318 U.S. 109 (1943):

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analyst’s statements here – prepared specifically for use at petitioner’s trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment (emphasis added).

See also, Rule 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).

The same rationale should apply to expert opinion testimony by a police-expert where the bases of the opinions are testimonial communications made for the purpose of criminal prosecution.

In conclusion, Crawford has significantly limited the practical use of police-expert witnesses where custodial interrogation and other forms of testimonial communications form the bases of the “expert opinion.” Criminal defense practitioners should remain vigilant of other possible applications of the rule announced in Crawford that may arise in future cases.