When can law enforcement officers offer lay opinions based on professional experience?

QUESTION PRESENTED This Petition will permit the Court to resolve two profound splits among the federal courts of appeals. The first circuit split concerns when, if at all, law enforcement can draw upon their professional experience when offering lay opinions under Fed. R. Evid. 701. The published decision below from the Fourth Circuit holds that Fed. R. Evid. 701 “allow[s] officers to bring to bear their accumulated experience when testifying as lay witnesses.” [App. 19]. That decision conflicts with decisions from other federal courts of appeals, which hold that “knowledge derived from previous professional experience falls squarely within the scope of Rule 702 and thus by definition outside of Rule 701.” United States v. Smith, 640 F.3d 358, 365 (D.C. Cir. 2011). See also James River Ins. Co. v. Rapid Funding, Ltd. Liab. Co., 658 F.3d 1207, 1215 (10th Cir. 2011) (quoting Smith); United States v. Gaytan, 649 F.3d 573, 582 (7th Cir. 2011) (“[A]n officer testifies as an expert when he brings the wealth of his experience as a narcotics officer to bear on [his] observations.” (quotation omitted)). The second circuit split concerns the burden of proving that a witness has relied upon testimonial hearsay in violation of the Confrontation Clause, U.S. Const. Amend. VI. The published decision below affirmed the conviction at issue because Petitioner David Smith had shown “no reason to think” that the agent was relaying testimonial hearsay to the jury via his opinion testimony, [App. 23], despite the agent’s conclusions explicitly drawn upon “experience” i that included custodial interrogations. E.g., [App.68]. By contrast, other circuits hold that “government bears the burden of defeating [a defendant’s] properly raised Confrontation Clause objection by establishing that its evidence is nontestimonial.” United States v. Jackson, 636 F.3d 687, 695 (5th Cir. 2011) (quoting United States v. Arnold, 486 F.3d 177 (6th Cir. 2007) (en banc)). The two questions presented for consideration are, therefore, the following: 1. Did the district court below err in allowing a law enforcement officer to offer a “lay” opinion based upon professional knowledge and experience gained in other cases? 2. Where an officer’s opinions explicitly draw upon prior experience interrogating suspects, did the officer’s opinion testimony below violate the Confrontation Clause where the Government did not show that the opinion was not based upon non-testimonial hearsay? ii