Today's case involves an unusually wide circuit split over Federal Rule of Evidence 701 that is presently pending before the Supreme Court.
In Jayyousi v. United States, the FBI recorded more than 100 phone conversations in Arabic between the Petitioner, Dr. Kifah Jayyousi, and his codefendants. According to Dr. Jayyousi’s cert. petition---which SCOTUSblog featured as its "petition of the day" on Tuesday---after reviewing translated transcripts of the recorded conversations, the federal agent who was later assigned to the case concluded that the suspects' seemingly innocuous references to “tourism” and “sneakers” were code words for “jihad.” At trial, prosecutors used the agent’s lay opinion testimony to convict Dr. Jayyousi of conspiring to murder, maim, and kidnap outside the U.S., and providing material support for that conspiracy. On appeal, the Eleventh Circuit ultimately joined three other circuits in a deep split over whether lay opinion testimony is admissible when it is not based on the testifying witness's first-hand perception or knowledge.
Under subsections (a) and (b) of Federal Rule of Evidence 701, lay opinion testimony must be “rationally based on the witness’s perception” and “helpful to clearly understanding the witness’s testimony or to determining a fact in issue.” The advisory committee notes explain that “[l]imitation (a) is the familiar requirement of first-hand knowledge or observation.” So where does each circuit stand on this issue? Dr. Jayyousi’s cert. petition describes the split in authority as follows:
1. Circuits holding that lay opinion testimony is admissible even if “based solely on information gathered during an after-the-fact investigation.”
Like the Eleventh Circuit, the Fifth and Tenth Circuits have also permitted lay opinion testimony with no indication that the agent had perceived the relevant events first-hand. See United States v. El-Mezain, 664 F.3d 467, 513 (5th Cir. 2011) (approving admission of testimony about meaning of wiretapped conversations and recorded videos based on after-the-fact participation in investigation); United States v. Zepeda-Lopez, 478 F.3d 1213, 1217-22 (10th Cir. 2007) (upholding admission of investigating agent’s voice and visual identification of defendant, as well as interpretation of translated transcripts, based on agent’s having played recordings multiple times). Under the analysis used by these courts, Rule 701’s “first-hand” experience requirement is met so long as the agent has taken part in an investigation, even if the witness has no first-hand knowledge of the particular events in question.
2. Circuits holding that lay opinion testimony is admissible in certain cases when “based on a mixture of first- and second-hand knowledge.”
The Seventh Circuit has also, with some reluctance, permitted a lay witness to base his opinions on facts generally gathered in an investigation, including from intercepted phone calls, interviews with witnesses, proffers from members of the conspiracy, and surveillance conducted by the agent and others. United States v. Rollins, 544 F.3d 820, 831-32 (7th Cir. 2008). However, the Seventh Circuit in Rollins conceded that the case “approaches the line dividing lay opinion testimony from expert opinion testimony,” id. at 833, and emphasized that the witness had listened to intercepted calls the same day the calls were intercepted, id. at 827, and that many of the witness’s opinions were based on the combination of contemporaneous surveillance and wiretaps, rather than solely on after-the-fact investigation, id. at 831- 32. Likewise the Ninth Circuit has permitted lay opinion testimony as to the meaning of ambiguous statements in intercepted phone calls where the witness’s understanding “was based on his direct perception of several hours of intercepted conversations – in some instances coupled with direct observation of [the speakers] – and other facts he learned during the investigation.” See United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007); but see United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993) (rejecting lay opinion identification based on surveillance photo reasoning that because “[t]he jury, after all, was able to view the surveillance photos . . . and make an independent determination,” the wit- ness’s testimony “ran the risk of invading the province of the jury”).
3. Circuits holding that lay opinion testimony is not admissible unless the witness “personally participated in or contemporaneously observed” the subject of their testimony.
Five courts of appeals depart strikingly from the interpretation of Rule 701 adopted by the courts above. For example, the Eighth Circuit has refused to admit testimony in a case with “facts materially indistinguishable from” [sic] those here.” Pet. App. 90a. In United States v. Peoples, “as the recordings of the . . . conversations were played for the jury,” an investigating agent who had no interactions with the defendants before their arrest “was allowed to offer a narrative gloss that consisted almost entirely of her personal opinions of what the conversations meant,” including the meaning of “plain English words and phrases.” 250 F.3d 630, 640 (8th Cir. 2001). The Eighth Circuit cautioned that “[l]ay opinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying,” and held that “[w]hen a law enforcement officer is not qualified as an expert by the court, her testimony is admissible as lay opinion only when the law enforcement officer is a participant in the conversation, has personal knowledge of the facts being related in the conversation, or observed the conversations as they occurred.” Id. at 641; see also United States v. Cruz, 285 F.3d 692, 700 n.4 (8th Cir. 2002) (excluding identification testimony when not based on first-hand knowledge as witness was “not more likely to identify Cruz correctly from the photograph than was the jury”).
The Fourth Circuit has expressly endorsed the Eighth Circuit’s analysis in Peoples, holding that an agent’ s interpretations of intercepted phone calls based on “interviews with suspects and charged members of the conspiracy after listening to the phone calls” were “post-hoc assessments [that could not] be credited as a substitute for the personal knowledge and perception required under Rule 701.” United States v. Johnson, 617 F.3d 286, 293 (4th Cir. 2010). This is because, in the Fourth Circuit’s view, “post-wiretap interviews,” “statements made by co- defendants,” and “experience as a DEA agent” all constitute “second-hand information” that does not “qualif[y] as the foundational personal perception needed under Rule 701.” Id. at 292-93. See also TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th Cir. 1994) (witness’s testimony was not “based on his own perceptions” when others were his “eyes and ears in the field”); Certain Underwriters at Lloyd’s London v. Sinkovich, 232 F.3d 200, 204 (4th Cir. 2000) (excluding lay opinion testimony “derived from . . . investigation and . . . analysis of the data” because it is not “first-hand knowledge” as required by the Rule); United States v. Perkins, 470 F.3d 150, 155-56 (4th Cir. 2006) (“lay opinion testimony must be based on personal knowledge”).
In addition to the above cases, the First, Second, and Third Circuits have all rejected lay testimony not based on personal perception in a host of cases, both in the criminal and civil contexts. See, e.g., Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990) (excluding testimony where witness did not see key event); United States v. Garcia, 413 F.3d 201, 212-13 (2d Cir. 2005) (case agent testimony inadmissible because it does not offer “an insight into an event that was uniquely available to the eyewit- ness”); United States v. Glenn, 312 F.3d 58, 66-67 (2d Cir. 2002) (holding it error to admit opinion tes- timony that bulge was gun when witness was too far away to have first-hand knowledge under 701); Hirst v. Inverness Hotel Corp., 544 F.3d 221, 224-28 (3d Cir. 2008) (excluding opinion testimony of whether incident could have been prevented where witness’s knowledge was second-hand).
In footnote 8 the Petitioner speculates that the Sixth and D.C. Circuits would join the majority of circuits if presented with the issue:
While the Sixth and D.C. Circuits have not explicitly addressed the issue, their jurisprudence suggests that they would join these five Circuits. See United States v. Ganier, 468 F.3d 920, 927 (6th Cir. 2006) (citing Peoples approvingly and noting that “[e]ven before the  amendment, witnesses who per- formed after-the-fact investigations were generally not allowed to apply specialized knowledge in giving lay testimony”); United States v. Olender, 338 F.3d 629, 637 (6th Cir. 2003) (upholding, without comment, exclusion of lay witness because of lack of personal perception); United States v. Moore, 651 F.3d 30, 54- 61 (D.C. Cir. 2011) (expressing concern regarding whether agent’s overview testimony was based on hearsay); United States v. Wilson, 605 F.3d 985, 1025-26 (D.C. Cir. 2010) (holding that the basis of an opinion “must come from one of two sources: the firsthand experience of a lay witness or the sort of ‘knowledge, skill, experience, training, or education’ that would qualify the witness as an expert.”).
This case appears to be highly certworthy for a number of reasons. Most obvious is the wide disagreement over the appropriate application of Rule 701. Given the fact that nearly every circuit has taken a position on the issue, it’s safe to say that the issue has had more than enough time to “percolate” as well. The issue presented in this case also involves an important question of federal law in that every district court in the nation must apply it. Likewise, its resolution would affect the scope of admissible lay testimony and may force federal investigators to alter the way they collect evidence. You can read the cert. petition here and the Eleventh Circuit’s opinion in the case here: U.S. v. Jayyousi, 657 F.3d 1085 (2011).
[*Hat tip to Lee Beck over at http://www.fedregsadvisor.com/].