Fourth Circuit holds that lay opinion testimony must be based on the witness' own perception

by Kirsten E. Small

Federal Rule of Evidence 701 permits lay opinion testimony when, among other things, the opinion is "rationally based on the perception of the witness." In United States v. Johnson,the Fourth Circuit held that a DEA agent's "training and experience" did not provide a basis for Rule 701 opinion testimony not based on the agent's own perceptions.

At Johnson's drug trafficking trial, the government presented testimony from DEA Agent Randy Smith regarding the meaning of certain words used by Johnson during recorded telephone conversations. Smith's interpretations were based on his "training and experience" as a DEA agent, not on his participation in surveillance of Johnson's alleged drug dealing activities.

The Fourth Circuit reversed Johnson's conviction, holding that because Smith did not personally participate in the investigation of Johnson, his testimony was not "based on the perception of the witness" as required by Rule 701.

The Court also rejected the government's argument that the error was harmless because Smith could have testified as an expert under Rule 702. Although Smith had the requisite qualifications, he provided no methodology or guiding principles for his interpertation of the phone calls, and therefore did not meet Rule 702's requirement that expert testimony must rest on reliable principles and methods.