Saturday, December 13, 2003

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Daubert ruling (2) admitting the testimony of a law enforcement officer on the modus operandi of drug dealers (3) in an unpublished opinion.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.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.