Thursday, February 11, 2010

Avoiding Impermissible Blurring Of Law Enforcement Expert And Lay Testimony

From Federal Evidence Review:

"Ninth Circuit affirms use of law enforcement lay and expert testimony where the trial court divided the testimony in phases and provided a jury instruction advising that the jurors were the ultimate fact finders; the expert also did not provide impermissible opinion testimony concerning the defendant’s intent, in United States v. Anchrum, _ F.3d _ (7th Cir. Dec.30, 2009)

 We have previously noted the special problems that may arise when a law enforcement witness provides both expert and lay testimony. See Overcoming Potential Prejudice Concerns In Using A Dual Fact and Expert Law Enforcement Witness; Plain Error Results In Using Dual Fact And Expert Witness; Problem Of Dual Expert and Fact Law Enforcement Testimony Avoided By Steps Taken In Drug Trial. While this dual testimony is not per se inadmissible, unless certain trial precautions are taken, the dual testimony may be subject to challenge on appeal based on the blurring of lay and expert testimony. A recent Ninth Circuit case considered this issue and highlighted the steps that may be taken to avoid possible error."
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