The Third Circuit panel majority, deepening a mature circuit split regarding the foundational requirements of Federal Rule of Evidence 701, ruled that the district court properly allowed the government's case agents to provide lay opinion testimony as to the essential elements of the charged offenses – the existence of the charged drug conspiracy and the defendants' membership therein – without providing any foundation beyond general testimony regarding the scope of their investigation, i.e., their use of wiretaps, surveillance and witness interviews. Six circuits have held that such lay opinion testimony fails the personal perception and helpfulness requirements of Rule 701 and that it fundamentally usurps the role of the jury because "if such broadly based opinion testimony as to culpability were admissible under Rule 701, "there would be no need for the trial jury to review personally any evidence at all." United States v. Garcia, 413 F.3d 201, 214 (2d Cir. 2005) (quoting United States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004)). Five circuits have held to the contrary, with at least one explicitly declaring that "'the application of Rule 701 should not be influenced by concern that opinion testimony usurps the role of the jury . . . ." United States v. Gadson, 763 F.3d 1189, 1209 (9th Cir. 2014) (quoting 29 Charles Alan Wright & Victor James Gold, Federal Practice & Procedure § 6252 at 112 (1997)).
The question presented is whether the personal perception and helpfulness requirements of Rule 701 are satisfied where the government's law enforcement witnesses provide lay opinion testimony as to the essential elements of the charged offenses without providing any foundation beyond general testimony regarding the scope of their investigation.
Whether the personal perception and helpfulness requirements of Rule 701 are satisfied where the government's law enforcement witnesses provide lay opinion testimony as to the essential elements of the charged offenses without providing any foundation beyond general testimony regarding the scope of their investigation