U.S. v. Fulton — criminal — affirmance — McKee

The Third Circuit today held that the trial court committed obvious errors by admitting two police officers’ lay-opinion testimony, but that the errors were harmless in light of other proof of the defendant’s guilt. In order for lay-opinion testimony to be admissible under FRE 701, it must be (among other things) helpful to the jury. The Third Circuit held that one officer’s testimony interpreting phone records was not helpful because it was “dead wrong and even misleading.”  Other testimony about whether two people looked alike was not helpful because the officers were not sufficiently familiar with the people they were discussing. (This holding relates to the recent Dennis en banc and the circuit’s new eyewitness identification task force.) The court rejected various other challenges.

Joining McKee was Hardiman; Smith concurred but disagreed with the majority’s conclusion that the evidence was admitted erroneously. Arguing counsel were defender Louise Arkel for the defendant and John Romano for the government.