Friday, April 20, 2007

4th Circuit Publishes Significant Opinion on "Drug Code" Testimony

In narcotics trials, law enforcement officers routinely offer expert testimony about "drug code" -- the specialized language used by drug dealers to obscure the true meaning of their conversations and negotiations, in case the authorities should chance to be listening in. Challenges to the reliability of drug-code testimony are almost universally rejected, usually with little discussion beyond a general reference to the witness's experience in law enforcement and narcotics investigations.

Yesterday, the Fourth Circuit published a substantial opinion on the subject, addressing the issue at far greater length than is the appellate norm. If we read it correctly, it actually imposes a halfway meaningful standard for drug-code testimony: namely, that the witness should be able to explain, for each "translated" expression, how the witness's experience enables the witness to translate it. It seems a modest and fair demand, and we hope it catches on. See United States v. Wilson, No. 05-4435 (4th Cir. Apr. 19, 2007) (Niemeyer, Williams, & Gregory, 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.