The 4th Circuit Does It Again
The Fourth Circuit has again followed its settled habits: (1) affirming a Daubert ruling (2) admitting the testimony of a law enforcement officer on the modus operandi of drug dealers (3) in an unpublished opinion. And it has done so: (4) in a per curiam decision (5) without oral argument. See United States v. Gwynn, No. 03-4293 (4th Cir. Dec. 11, 2003) (Wilkinson, Traxler, & Gregory, JJ.).
If these rulings upholding expert law enforcement testimony on the methods of drug dealers are really as routine as the appellate opinions make them sound, it is becoming difficult to understand why defendants even raise the point on appeal. The opinion in Gwynn contains no analysis of the details of the officer's testimony. It simply rests on the proposition that testimony in this category has been ruled admissible before. Did the defendant raise a categorical argument on appeal that such testimony should be inadmissible in general under Daubert and Kumho Tire? If so, then perhaps the Fourth Circuit could squelch this sort of thing by publishing a few opinions rejecting that argument. Did the defendant raise some more particular challenge to the details of the officer's testimony? If so, then some additional discussion of the details might afford clearer guidance to the appellate bar, even if the opinions remained unpublisihed.
If these rulings upholding expert law enforcement testimony on the methods of drug dealers are really as routine as the appellate opinions make them sound, it is becoming difficult to understand why defendants even raise the point on appeal. The opinion in Gwynn contains no analysis of the details of the officer's testimony. It simply rests on the proposition that testimony in this category has been ruled admissible before. Did the defendant raise a categorical argument on appeal that such testimony should be inadmissible in general under Daubert and Kumho Tire? If so, then perhaps the Fourth Circuit could squelch this sort of thing by publishing a few opinions rejecting that argument. Did the defendant raise some more particular challenge to the details of the officer's testimony? If so, then some additional discussion of the details might afford clearer guidance to the appellate bar, even if the opinions remained unpublisihed.
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