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United States v. Stanley

United States District Court, D. Connecticut

December 4, 2016

UNITED STATES OF AMERICA
v.
ARTHUR STANLEY, Defendant.

          ORDER RE LIMITATIONS ON TESTIMONY OF SGT. O'HARE

          Jeffrey Alker Meyer United States District Judge

         The Government proposes to call as a witness Sergeant Johnmichael O'Hare of the Hartford Police Department. Defendant has moved to limit the scope of his testimony. Docs. #66 & #69. In light of the concerns expressed by defendant and my review of other transcripts of Sgt. O'Hare's prior testimony, I will grant defendant's motions in large part and conclude that Sgt. O'Hare's testimony shall be subject to specific limitations as set forth in this ruling.

         Background

         As best as I can tell, the Government will rely on Sgt. O'Hare as a mixed fact/expert witness.[1] As a fact witness, Sgt. O'Hare will reportedly testify about particular photographs of particular persons that he knows from his investigations in Hartford. To the extent that he has participated in particular surveillance or warrant activities (and to the extent that the Government discloses the underlying information required pursuant to Fed. R. Crim. P. 26.2), I suppose he might also testify concerning other facts known to him about which he has first-hand knowledge and that is not based on statements from third parties or other law enforcement officials (e.g., testimony of his surveillance activity of particular persons).

         As an expert witness, Sgt. O'Hare will reportedly testify “as an expert to explain the presence of identifiable gangs in Hartford from approximately 2008 to 2011, including their method of operation and membership, structure, locations, graffiti, and drug dealing and use of guns.” Doc. #81 at 1. The Government further states that “Sergeant O'Hare's testimony as a gang expert will be directed at more limited specialized knowledge concerning the existence of drug trafficking gangs in Hartford, the geographical areas controlled by the groups, and the organization, structure, and territory of these groups in the City of Hartford.” Id. at 7.

         Discussion

         In light of the transcripts I have reviewed and in light of recent case law of the Second Circuit, I have substantial concerns about the scope and content of Sgt. O'Hare's testimony. Accordingly, I will limit the testimony of Sgt. O'Hare as set forth below.

         1. Bifurcation of Fact/Expert Testimony

         The Second Circuit has held that a witness offering “dual testimony, ” i.e., testifying as both an expert and fact witness, “is not objectionable in principle.” United States v. Feliciano, 223 F.3d 102, 121 (2d Cir. 2000). Nevertheless, the Second Circuit “has frequently cautioned as to the risks presented by allowing a law enforcement officer to testify as both a fact and an expert witness.” United States v. Barrow, 400 F.3d 109, 124 (2d Cir. 2005). Accordingly, the Second Circuit has “urged district courts to exercise particular vigilance to ensure that the witness's dual role does not impair the jury's ability properly to evaluate credibility, ” and it has instructed that “a court must ensure that the reliability of the witness's expert opinions is not improperly enhanced by a jury's assumption that the witness has knowledge of the defendant's activities that goes ‘beyond the evidence at trial.'” Ibid; see also United States v. Cruz, 363 F.3d 187, 195 (2d Cir. 2004) (noting “[t]he heightened risk that a law enforcement official will stray from the scope of his expertise if he also functions as a fact witness” and that it “is particularly troubling because expert testimony provided under these circumstances is especially likely to raise concerns about juror confusion under Rule 403”).

         In light of these concerns, I conclude that, to the extent that Sgt. O'Hare will testify as both a fact and expert witness, I will require the Government to present his factual and expert testimony in bifurcated, distinct phases of his examination and to be subject to separate cross-examination for each phase. I will give the jury the following cautionary instruction at the time that Sgt. O'Hare testifies:

Ladies and gentleman, Sgt. Johnmichael O'Hare will testify in this case as both a fact witness and a so-called expert opinion witness. First, he will testify as to certain facts about which he has first-hand knowledge based on his personal observations. After he has testified about these factual matters, he will be subject to cross-examination by the defense.
Second, he will testify anew as an expert opinion witness on the basis of his law enforcement experience involving drug trafficking gangs in Hartford. The parties in a case are permitted to call expert witnesses if the witness may have knowledge about matters that are beyond the ordinarily knowledge of an average layman. Specifically, as an expert witness, Sgt. O'Hare will be permitted to testify on the basis of his prior experience concerning his opinion about the following subject areas: (1) the existence of and names of drug trafficking gangs in Hartford from 2008 to 2011; (2) the geographical areas controlled by particular drug trafficking gangs in Hartford from 2008 to 2011; (3) the general organization, hierarchy, and structure of drug trafficking gangs in Hartford from 2008 to 2011; and (4) any practices of drug trafficking gangs in Hartford from 2008 to 2011 concerning the use of graffiti or markers to signify their respective territories.
Of course, although Sgt. O'Hare will testify in part as an expert witness, it is for you to evaluate his credibility and the persuasiveness of his testimony about any facts and of his opinions, and you should not automatically credit his testimony on the grounds that he is a law enforcement officer or that he is testifying in part as an alleged expert witness.

See also United States v. Rios, 830 F.3d 403, 414, 416 (6th Cir. 2016) (noting that jury should be informed of an officer's dual role as a fact witness and expert witness and that law enforcement witness's “overall presentation as a dual fact-expert witness without further demarcation or explanation to the jury was in error”). To the extent that the Government anticipates that the scope of Sgt. O'Hare's factual or expert testimony will differ from that described in this ruling, the Government should advise the Court such ...


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