Lay and Expert Witness Issues – Round II

U.S. v. Cheek | 12-2472

January 2014

In Cheek, the Seventh Circuit again expounded on the lay witness/expert witness distinction – this time reviewing the testimony of an FBI agent who testified about the meaning of “code words” used by drug dealers on intercepted telephone calls. The court concluded that the agent’s testimony was permissible lay testimony because it was based on personal knowledge obtained during the investigation in question. But the court went on to note that it would be expert testimony had the agent testified from expertise derived from his involvement in other investigations.

The Cheek case is also notable for how the parties used transcripts of these telephone calls during trial. The government put together transcripts that included bracketed language substituting the agent’s understanding of the “code words” for the words actually used. The defendant objected to the agent’s understanding of those “code words,” but otherwise did not object to the introduction of the transcripts into evidence – or to letting the transcripts go back with the jury during deliberations. On appeal, the defendant changed course, and citing authority from the Seventh Circuit, challenged the jury’s right to use the transcripts during deliberations. The Court, however, found no error, given the defendant’s failure to object at trial.

Despite the ultimate result, the discussion in Cheek is a good reminder that transcripts are not necessarily admissible (and typically inadmissible) as evidence at trial, even if they are used during trial as demonstrative exhibits. And certainly the inclusion of one witness’s understanding of terms used in a recorded conversation (by the inclusion of the bracketed language) would be a basis to object to the admission of the transcripts in almost any instance. As the government increases its use of recorded evidence in white collar prosecutions, defense attorneys must be vigilant at trial to protect against the improper use of those transcripts – or later come to regret it.