Ninth Circuit Finds Detective’s Lay Opinion Testimony Identifying the “Cowboy Gun Bandits” Was Improperly Admitted

December 5, 2024

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

So, would a detective be able to offer lay opinion testimony identifying two disguised criminals caught on surveillance videos based on having later arrested someone he believes to be one of the criminals in the videos? According to the recent opinion of the Ninth Circuit in United States v. Dorsey, 2024 WL 4966060 (9th Cir. 2024), the answer is “no.”

In Dorsey,

A jury convicted Dominic Dorsey of multiple federal crimes arising from a spree of robberies committed by two disguised men. The evidence at trial included video from security cameras that recorded the robberies. A police detective testified, as a lay witness, about his out-of-court review of the surveillance video. Based on his review, the detective opined on details in the video that the jury may otherwise have missed. The detective also opined, based on his own comparison of those details that were in evidence before the jury, that the disguised robbers shown on the surveillance video were Dorsey and his codefendant, Reginald Bailey.

Specifically,

In the fall of 2013, two disguised men robbed a series of gas stations in the Los Angeles area. The robbers would enter a store, brandish a “cowboy-style” revolver, and demand that employees give up the contents of the cash register. They wore dark clothing, gloves, and hooded sweatshirts. The taller robber wore a black ski mask; the shorter robber placed a blue bandana over his face. After targeting gas stations for two months, the men ended their spree of armed robberies at a bank, where they made off with more than $55,000.

These men were later dubbed the “Cowboy Gun Bandits,” Detective Christopher Marsden later arrested Dorsey, whom he believed to be one of the men in the videos. Dorsey and Bailey were later prosecuted for the robberies, with Marsden identifying them as the two men in the surveillance videos. After Dorsey was convicted, he appealed, claiming that Detective Marsden’s testimony violated Rule 701. In response, the court ruled as follows:

Detective Marsden’s lay opinions identifying Dorsey and Bailey as the disguised robbers were “unhelpful” and therefore inadmissible under Rule 701 because that testimony did not provide reason to believe that Detective Marsden was more likely to identify correctly the robbers than was the jury….The detective did not identify the disguised robbers based on his “sustained contact” with Dorsey and Bailey,…nor any other personal knowledge about their appearance that the jury lacked….Detective Marsden served as the “lead investigator” of the crimes, and in that capacity testified to tracking down Dorsey through phone and vehicle records as well as unsuccessful attempts to follow his car. But these investigative steps focused on Dorsey’s identity on paper. They did not provide the detective with personal knowledge of Dorsey’s appearance, the basis of the detective’s identification opinion.

Although Detective Marsden had arrested Dorsey, and interviewed him post-arrest, he did not testify that this limited personal contact helped him identify Dorsey as the taller suspect in the video. The government also relied on driver’s licenses and booking photos, not the detective’s personal recollection, to establish Bailey’s appearance at the time of the crimes. While “we have not provided clear guidance as to the extent of contact sufficient to render lay opinion testimony rationally based and helpful to the jury…”our “case-by-case approach” has relied on multiple contacts over a long time to establish “sufficient contact” to support personal knowledge of identity….Instead, after comparing the images of the disguised robbers to images of Dorsey and Bailey, the detective opined about the identities of the robbers without the benefit of such personal knowledge. He did so based only on his own belief that there were enough similarities to say the same features, even the same people, were visible in both sets of images.

These identification opinions were based on the surveillance video, still images, and the detective’s extensive review of that evidence. But the jury had access to all the same evidence and, through the detective’s narrative testimony, the jury had been directed to important details of that evidence they might otherwise have missed. The detective’s additional identification opinions, therefore, did not “offer[ ] to the jury ‘a perspective it could not acquire in its limited exposure’ to the defendant.”…Thus, the identity of the disguised robbers “was a determination properly left to the jury.”…

These restrictions on the admissibility of identification opinions reflect a basic limitation on the scope of testimony admissible as lay opinion. Rule 701 reduced courts’ reliance on the slippery distinction between admissible factual testimony and inadmissible opinion testimony….But the rule does not allow non-expert witnesses to offer conclusory opinions “which amount to little more than choosing up sides.”…When a witness opines about an issue “within the common knowledge of the jury” based on evidence already in front of the jury, the opinion is unhelpful because the witness has “essentially ‘spoon-fed his interpretations of the [evidence] to the jury.’”…Here, the detective’s identification opinions raised exactly these concerns: weighing evidence already in front of the jury, choosing a side, and spoon-feeding that conclusion to the jury. The admission of the detective’s identification opinions thus was improper under Rule 701.

That said, the court ruled that the error was harmless and affirmed Dorsey’s convictions.

-CM

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/04/19-50182.pdf