objection, move to strike, or request a mistrial.
The Court of Appeals has recognized that opinion witness testimony as to the common practices in narcotics operations is commonly admitted to assist jurors to evaluate testimony and evidence. However, this testimony must be scrutinized when it becomes "potentially harmful", because of the inherent danger of such testimony causing undue bias on the part of the jury through "'its aura of special reliability and trustworthiness.'" United States v. Doe, 903 F.2d 16, 20 (D.C. Cir. 1990) (quoting United States v. Anderson, 851 F.2d 384, 393 (D.C. Cir.), cert. denied, 488 U.S. 1012, 109 S. Ct. 801, 102 L. Ed. 2d 792 (1989). See also United States v. Castillo, 924 F.2d 1227, 1231-1235 (2nd Cir. 1991) (noting that opinion witness testimony on operations of narcotics dealers should be circumscribed to occasions where the subject matter of testimony is unfamiliar to jurors).
Defendant claims trial counsel erred by failing to object to the first statement or to request a mistrial, and he erred by failing to renew his objection after the second statement was made or to request a mistrial. Defendant argues the statements were unnecessary and highly prejudicial, implying, gratuitously, that the defendant sold drugs to thousands of people and was the type of person likely to do violence to informants. As to the first statement, the Court agrees that the better course would have been for trial counsel to object. However, the Court does not believe that Officer Stroud's testimony that revealing the identity of an informant could cause an informant harm was unduly prejudicial to the defendant. The testimony was relevant because the identity of the informant was not produced at trial, and the informant was not produced as a witness at trial. The government was entitled to provide an explanation for this absence, to ensure that the jury did not draw unwarranted inferences against the government from the failure of the informant to testify. Moreover, the testimony was relevant to the issue of why there was a delay between the sale and arrest of the defendant, because according to the government one reason for the delay was to protect the identity of the informant. The possible prejudicial effect of this testimony did not outweigh its probative value. See Fed. R. Evid. 403. Therefore, even if trial counsel had objected or requested a mistrial, the Court would have allowed the testimony.
As to the second statement, trial counsel did object to the underlying question and thereby preserved the issue for appeal. This was sufficient to constitute competent representation. Even if the better decision would have been to request the mistrial upon hearing Officer Stroud's allusion to "thousands" of drug deals, this Court would not have been inclined to grant it. The statement was relevant to the issues in the case, and the Court does not believe that the jury would have been unduly influenced by the statement alone.
The Court did not refer to Officer Stroud as an "expert". This Court believes that using the term "expert" may encourage a jury to give the witness' testimony more weight than it is fairly entitled to receive. Although Rules 702 and 703 of the Federal Rules of Evidence do not preclude the use of the term "expert", the rules make clear that the purpose of the testimony is to allow a witness with specialized knowledge to state an opinion. The Court believes that referring to the witness as an "opinion witness" explains the purpose of the testimony to the jury in a manner more consonant with the interests of justice as prescribed in Fed. R. Crim. P. 2, and accordingly the Court referred to Officer Stroud simply as an "opinion witness".
Moreover, the Court gave the jury a limiting instruction as to how it should consider the testimony of opinion witnesses and police officers in its final jury instructions, and alerted the jury to these instructions at the time Officer Stroud testified. See Tr. 66. The jury instructions provided in relevant part:
Please note that the rules of evidence ordinarily do not permit witnesses to testify as to their opinions or conclusions. Two exceptions to this rule exist. The first exception allows an ordinary citizen to give his or her opinion as to matters that he or she observed or of which he or she has first-hand knowledge. The second exception allows witnesses who, by education, training and experience, have acquired a certain expertise in some art, science, profession or calling, to state an opinion as to relevant and material matters.