Tuesday, May 17, 2005

1st Circuit Says Law Enforcement Officer's Testimony on Modus Operandi of Drug Dealers Is Lay Opinion

Last week, the First Circuit held that testimony from an arresting officer on the modus operandi of drug dealers should be treated as lay opinion, not expert testimony -- at least where the testimony is grounded in the officer's own law enforcement experience. The ruling, which departs from the general pattern prevailing in other circuits, would imply that such modus operandi testimony is not subject, within the First Circuit, to the pretrial discovery requirements applicable to expert evidence. See United States v. Ayala-Pizarro, No. 04-1038 (1st Cir. May 12, 2005) (Torruella, Lynch, & Lipez, JJ.).


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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.