Confrontation Clause Permits Agent To Testify As Expert On Use Of Drug Couriers Based On His 'Experience And Training'

In a number of earlier posts, we have examined the shifting and variable analyses of lower courts seeking to apply the Supreme Court's case of Crawford v. Washington, 541 U.S. 36 (2004) and its progeny. In attempting to determine the admissibility of testimonial statements from out-of-court declarants who have not been subject to cross-examination, one recurring fact pattern concerns law enforcement agents proffered as expert witnesses at trial as to the modus operandi of various criminal organizations. Prosecutors often seek to elicit agent-expert testimony about the patterns of conduct of drug organizations, organized crime groups, and tax evaders, hoping of course to have the agent-expert sketch out a course of conduct which just happens to mirror the activities of the defendant on trial, without having the agent-expert improperly testify that the particular defendant exhibited those very guilty behaviors or possessed the mens rea necessary to prove...