People v. Jose Inoa
AD1 order dated September 26, 2013, affirming judgment of conviction. Decision below: 109 AD3d 765, 971 NYS2d 530. Smith, J., granted leave April 2, 2014. Argued May 6, 2015.
ISSUE PRESENTED: Whether the trial court erred in permitting a police detective to testify as an expert with regard to coded or unexplained language in recorded telephone conversations between the defendant and his co-defendant. (Assigned counsel: John R. Lewis, 36 Hemlock Drive, Sleepy Hollow, NY 10591.)
Issue before the Court: Whether the police officer’s testimony about the meaning of conversations between defendant and co-defendant usurped the jury’s role as a factfinder.
Held: Even though officer was qualified as an expert to testify about coded portions of conversations between defendant and co-defendant, the officer should not have been permitted to interpret uncoded portions of conversations, but the admission was harmless.
CAL Observes: The Court was called upon to address the increasingly prevalent practice of using an investigating detective to interpret and or summarize the words and actions of participants in the underlying offense. While the Court ultimately found any error harmless, and praised the underlying investigatory police work, it was highly critical of the practice of presenting law enforcement personnel as “summation witnesses, instructing the jury comprehensively and with an aura of expertise, as to how the particular factual issues presented in each case should be resolved.” The Court recognized that, when it came to “coded” communications, an expert witness was appropriate to define terms that were outside the knowledge of lay jurors. But expert testimony was not appropriate to explain the meaning of entire conversations. Discussing Second Circuit caselaw, the Court identified two areas where a law enforcement agent might exceed the scope of his expertise. First, the expert might testify about the meaning of conversations “in general, beyond the interpretation of code words.” Second, the expert might “interpret ambiguous slang terms gained through their own involvement in the case, rather than by reference to the fixed meaning of those terms either within the narcotics world or within this particular conspiracy.” Despite its finding that any error was harmless, the Court’s opinion sends an unmistakable message that expert witnesses must limit their testimony to “a discrete issue beyond the ken of ordinary jurors.” Experts may not lapse into advocacy of a particular point of view. The court was particularly wary of expert testimony from law enforcement personnel from those who participated in the particular investigation, for fear that this “seemingly authoritative testimony” might instruct the jury as to the facts it should find, improperly usurping the jury of its role as factfinder.