Trial judges must beware allowing cops to interpret others’ conversations
Our tax dollars pay extraordinary amounts of money for law enforcement officers and prosecutors to spend countless hours each year to the tune of millions of dollars (if not billions of dollars) to further pursue the drug war that is a failure and an excessive incursion on our civil liberties and the public fisc.
Jerome Hampton was convicted for a drug conspiracy where his chances of conviction or acquittal seemed to rise or fall on his case’s FBI “case agent’s” interpretation of alleged drug ring conversations that the case agent did not participate in. Hampton v. U.S., ___ F.3d ___ (D.C. Cir., June 25, 2013). The case agent testified to having reviewed over 20,000 conversations of the drug ring, but only a much smaller portion of those conversations were introduced into evidence.
It is most sad that the trial judge allowed in the case agent’s testimony interpreting those drug ring conversations. Quite correctly, the D.C. Circuit slammed the trial court’s allowing such testimony, including because the case agent testified as a lay witness when only expert testimony was allowed to permit such interpretive testimony, and because a slew of conversations the case agent interpreted were not even introduced into evidence.
In reversing Hampton’s conviction, the D.C. Circuit said:
In light of the importance of Agent Bevington’s opinion testimony to the government’s case, the weakness of the government’s other evidence, and the likelihood that the jurors afforded Bevington substantial authority because of his expertise and access to information unavailable to them, we cannot say “with fair assurance” that the error did not substantially affect the jury’s verdict. Kotteakos v. United States, 328 U.S. 750, 765 (1946); see Grinage, 390 F.3d at 752.
Here, I discuss the Fourth Circuit’s treatment of police interpretation of communications. Unfortunately, when the police officer is a party to the conversation, the Fourth Circuit allows more leeway to allowing the police officer to give his or her interpretation of the words of the defendant participating in the conversation. U.S. v. Johnson, 617 F.3d 286 (4th Cir. 2010).