UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 22-275 (CKK) PHILIP DUPREE,
Defendant.
MEMORANDUM OPINION (May 29, 2024)
Pending before the Court is Defendant Philip Dupree’s [45] Motion in Limine to Exclude
Improper, Irrelevant and Prejudicial Evidence. Upon consideration of the pleadings,1 the relevant
legal authorities, and the record as a whole, the Court shall DENY Defendant’s motion to preclude
the Government from introducing evidence of whether Defendant was outside his jurisdiction
when he arrested T.S. in the District of Columbia, whether Defendant violated Fairmount Heights
Police Department (“FHPD”) policy by not turning on his body-worn camera, whether
Defendant’s use of his personal vehicle rather than a FHPD police cruiser was proper, and whether
Defendant violated FHPD policy by taking T.S. to the FHPD station.
The Court shall DENY Defendant’s motion to preclude the Government from introducing
1 The Court’s consideration has focused on the following documents: • Indictment, ECF No. 1; • Defendant’s Motion in Limine, ECF No. 45 (“Def.’s Mot.”); • Government’s Opposition to Defendant’s Motion in Limine, ECF No. 46 (“Gov.’s Opp’n”); • Defendant’s Reply in Support of Motion in Limine, ECF No. 53 (“Def.’s Reply”); • Government’s Supplemental Response, ECF No. 61 (“Gov.’s Suppl. Opp’n”); • Defendant’s Reply to Government’s Supplemental Response, ECF No. 68 (“Def.’s Reply to Gov.’s Suppl. Opp’n”). 1 evidence that Defendant allegedly brought T.S. to the FHPD station instead of directly to DOC
and evidence of the statements allegedly made by Defendant to T.S. during that intervening period.
The Court shall DENY AS MOOT Defendant’s motion seeking to exclude evidence of his
prior employment under Federal Rule of Evidence 403, as it is addressed by the Court’s ruling in
its [63] Order.
Finally, the Court shall GRANT Defendant’s motion regarding testimony of officers not
employed by FHPD and holds that such eyewitness law enforcement officers can only provide lay
opinion testimony.
I. BACKGROUND
According to the Indictment, Defendant Philip Dupree was a sworn officer of the FHPD, a
law enforcement agency in the state of Maryland. Indictment ¶ 1. He had approximately eight
years of experience as a law enforcement officer and was trained in and aware of his duty not to
use unreasonable or excessive force against arrestees in violation of their Fourth Amendment
rights. Id. ¶ 2.
Beginning on August 3, 2019 and extending into August 4, 2019, Defendant was on duty
as a uniformed FHPD officer assigned to vehicular patrol. Id. ¶ 3. He was using his personal
vehicle rather than an official FHPD police cruiser. Gov.’s Opp’n at 4. At about 1:11 AM on
August 4, 2019, Defendant observed a motor vehicle allegedly traveling at a high rate of speed
heading toward the Washington, D.C. border. Def.’s Mot. at 4. Defendant conducted a traffic
stop, which took place in Washington, D.C. Id. The motor vehicle was operated by an individual
referred to as T.S., and T.S.’s sister was seated in the passenger seat. Id. Defendant almost
immediately requested back-up after initiating the traffic stop. Id. T.S.’s sister called 911 and
reported that an officer was attempting to arrest T.S. Id. Defendant’s police assistance soon
2 arrived, as well as an officer from the Metropolitan Police Department based on the 911 call. Id.
Defendant alleges that a series of events occurred, in which T.S. and his sister exhibited
“belligerent and aggressive behavior toward [him].” Id. at 5. Although T.S. was handcuffed and
restrained, he eventually “had the opportunity and ability to attempt to bite Officer Dupree on the
left arm.” Id. at 5–6. Defendant used pepper spray on T.S.’s face, id. at 6, which the Government
claims was done without justification, Indictment ¶ 6. During this entire encounter, Defendant did
not activate his body-worn camera. Gov.’s Opp’n at 4.
Defendant then transported T.S. to the FHPD station following his arrest rather than to the
county jail. Id. There, Defendant wrote and submitted a probable cause statement to a Maryland
state commissioner, which the Government contends includes false information. Indictment ¶ 8.
The Indictment charges Defendant Dupree with Count One, Deprivation of Rights Under
Color of Law, in violation of 18 U.S.C. § 242, and Count Two, Obstruction of Justice, in violation
of 18 U.S.C. § 1512(b)(3). Id. ¶¶ 5–8. Defendant has rejected a plea offer tendered by the
Government, see Minute Order, Jan. 18, 2024, and a trial is set to begin on June 3, 2024. Defendant
filed the pending [45] Motion in Limine to Exclude Improper, Irrelevant and Prejudicial Evidence,
which is now ripe for the Court’s resolution.
II. DISCUSSION
Defendant seeks to preclude the Government from referencing or introducing various
categories of evidence, which the Court will now address in turn.
A. Defendant’s Other Actions Allegedly in Violation of FHPD Policy and Practice
Defendant seeks to preclude the Government from discussing whether Defendant Dupree
acted in contravention of certain FHPD policies and practices. Def.’s Mot. 11. More specifically,
he seeks to preclude the introduction of evidence regarding whether Defendant had jurisdiction to
3 arrest T.S. in the District of Columbia, whether Defendant violated FHPD policy by not turning
on his body-worn camera, whether Defendant’s use of his personal vehicle on August 4, 2019 was
proper, and whether Defendant violated FHPD policy by taking T.S. to the Fairmount Heights
police station. Id. at 11–12. He argues that this evidence is not relevant to the charged offense of
18 U.S.C. § 2422 and also presents a danger of unfair prejudice, confusing the issues, and
misleading the jury. Id. at 12.
Evidence is relevant if it has any tendency to make a fact more or less probable than it
would be without the evidence, and the fact is of consequence in determining the action. Fed. R.
Evid. 401. The Court finds that evidence of whether Defendant was outside his jurisdiction when
he arrested T.S. in the District of Columbia, whether Defendant violated FHPD policy by not
turning on his body-worn camera, whether Defendant’s use of his personal vehicle rather than a
FHPD police cruiser was proper, and whether Defendant violated FHPD policy by taking T.S. to
the FHPD station is direct evidence that is relevant to whether Defendant possessed the mens rea
of willfulness required by Section 242.
In his motion, Defendant relies on misplaced caselaw; the cases he cites do not involve
alleged violations of 18 U.S.C. § 242 but instead relate to 42 U.S.C. § 1983, which does not require
a plaintiff to prove that a defendant officer acted willfully. See Def.’s Mot. at 12 (citing Thompson
v. City of Chicago, 472 F.3d 444, 454–55 (7th Cir. 2006); Tanberg v. Sholtis, 401 F.3d 1151, 1164
2 Defendant does not mention the other charged offense, 18 U.S.C. § 1512(b)(3), except in his reply, Def.’s Reply at 5–6, after the Government argued that Defendant’s policy violations after the incident are evidence of his intent or motive for that charge, Gov.’s Opp’n at 5–7. Section 1512(b)(3) makes it a crime to “knowingly… engage[] in misleading conduct toward another person, with intent to… hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” 18 U.S.C. § 1512(b), (b)(3). The Court finds that Defendant’s transportation of T.S. to the Fairmount Heights police station in alleged violation of FHPD policy is not relevant to the § 1512(b)(3) charge. 4 (10th Cir. 2005); Greenridge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991); Medina v. Cram, 252
F.3d 1124, 1133 (10th Cir. 2001)); United States v. Proano, 912 F.3d 431, 439 (7th Cir. 2019) (Ҥ
1983, unlike § 242, is a civil statute that lacks a specific-intent requirement”). But as was discussed
in the Court’s [64] Memorandum Opinion, and as Defendant even recognizes in the instant Motion,
see Def.’s Mot. at 10, Section 242 does require a mens rea of willfulness. The Supreme Court has
interpreted this mens rea to require that the defendant “had the purpose to deprive the [victim] of
a constitutional right,” Screws v. United States, 325 U.S. 91, 107 (1945), and the United States
Court of Appeals for the District of Columbia Circuit has explained that “[o]ne who does act with
such specific intent is aware that what he does is precisely that which the statute forbids,” United
States v. Ehrlichman, 546 F.2d 910, 920 (D.C. Cir. 1976).
The Government contends that Defendant Dupree’s actions listed above are in
contravention of FHPD policies and practices and therefore are evidence of his willfulness. See
Gov.’s Opp’n at 2.3 “Willfulness may be shown by circumstantial evidence, provided that the
defendant’s purpose reasonably may be inferred from all the connected circumstances.” United
States v. Cowden, 882 F.3d 464, 474 (4th Cir. 2018) (citing Screws, 325 U.S. at 106); see also
United States v. Williams, 341 U.S. 70, 94 (1951) (Douglas, J., dissenting) (providing an example
of “typical” jury instructions: “In considering whether the defendants had such specific intent, you
may take into consideration all the circumstances of the case in the light of the evidence as it has
been developed.”). Here, the “connected circumstances” before and after Defendant’s use of
3 The Court notes that the Government relies on misplaced case law––those holding that evidence of policies on use of force and an officer’s non-conformity with those policies can show the specific intent necessary for the charge predicated on use of force. See Gov.’s Opp’n at 2. Here the evidence at issue is regarding policies on conduct other than use of force and an officer’s non-conformity with those policies, but would still be offered to show the specific intent necessary for the charge predicated on use of force. 5 pepper spray are direct evidence of and relevant to his state of mind and alleged purpose to deprive
T.S. of a constitutional right. For example, evidence of Defendant’s failure to turn on his body-
worn camera during his encounter with T.S. in violation of FHPD policy makes it more probable
that he had the purpose to deprive T.S. of a constitutional right, and that he was aware his behavior
was constitutionally forbidden—i.e., that he possessed the requisite specific intent. So too does
evidence regarding Defendant’s use of his personal vehicle during patrol rather than an official
FHPD police cruiser and evidence that he was outside of his jurisdiction when he made the arrest.
And, as the Government explains, “what Dupree did after his unjustified use of force, including
any… policy and practice violations that Dupree committed following the use of force [i.e., taking
T.S. to the Fairmount Heights police station], is evidence that Dupree knew what he did was
wrong.” Gov.’s Opp’n at 5.
Next, the Court finds that Defendant has failed to sufficiently show that this evidence
“present[s] a substantial danger of unfair prejudice, confusion of the issues, and misleading of the
jury,” Def.’s Mot. at 12, as, notably, he fails to argue any specifics, see, e.g., Def.’s Reply at 5
(“Presenting the jury with expert testimony regarding other purported policy violations… would
only serve to unfairly prejudice Officer Dupree and mislead the jury as to the very limited issue it
is being asked to consider.”). If Defendant so requests during trial, the Court can issue a limiting
instruction to ensure that the jury does not consider such evidence for other purposes. See Fed. R.
Evid. 105.
Accordingly, as pertaining to the Section 242 charge, the Court holds that, at this time and
based on the arguments presented in the pleadings, the Government is not precluded from
introducing evidence of whether Defendant was outside his jurisdiction when he arrested T.S. in
the District of Columbia, whether Defendant violated FHPD policy by not turning on his body-
6 worn camera, whether Defendant’s use of his personal vehicle rather than a FHPD police cruiser
was proper, and whether Defendant violated FHPD policy by taking T.S. to the Fairmount Heights
police station. The Court therefore DENIES Defendant’s motion to preclude the Government
from raising such evidence.
B. Events After T.S.’s Arrest
Defendant next argues that the Government should be precluded from introducing evidence
or argument regarding two events that occurred after the alleged use of excessive force and
subsequent arrest. First, he seeks preclusion of evidence that Defendant allegedly brought T.S. to
the FHPD station, where they remained for approximately six hours, before transporting him to
the Prince George’s County Department of Corrections (“DOC”), Def.’s Mot. at 13, which was
contrary to FHPD practice requiring direct transportation to DOC, Gov.’s Opp’n at 8. Second, he
seeks preclusion of Defendant’s statements allegedly made to T.S. during the period between when
they left the scene of arrest and arrived at the DOC. Def.’s Mot. at 13. Defendant argues that this
evidence is not relevant to the charged offense of 18 U.S.C. § 2424 and also presents a danger of
unfair prejudice. Id. at 13–14.
As for the fact that Defendant allegedly brought T.S. to the FHPD station instead of directly
to DOC, the Court finds that this evidence is relevant to the Section 242 charge. Similar to the
Court’s analysis above, the Court finds that the fact that Defendant acted in contravention of FHPD
practice is relevant to his state of mind of willfulness.
Additionally, the Court finds that this evidence is relevant to the other charged offense, 18
U.S.C. § 1512(b)(3). Section 1512(b)(3) makes it a crime to “knowingly… engage[] in misleading
4 Defendant does not mention the other charged offense, 18 U.S.C. § 1512(b)(3), except in his reply, Def.’s Reply at 7, after the Government argued that this evidence is relevant to that charge as well, Gov.’s Opp’n at 7–9. The Court will address both charges. 7 conduct toward another person, with intent to… hinder, delay, or prevent the communication to a
law enforcement officer or judge of the United States of information relating to the commission or
possible commission of a Federal offense.” 18 U.S.C. § 1512(b), (b)(3). To make out a Section
1512(b)(3) violation, the government must prove that a defendant: (1) engaged or attempted to
engage in misleading conduct toward another person; (2) did so knowingly; (3) with the specific
intent to hinder, delay or prevent the communication of information; and (4) that it was reasonably
likely that the information would have been communicated to a federal law enforcement officer;
and (5) that the information related to the commission or the possible commission of a federal
offense). United States v. Sutton & Zabavsky, Case No. 21-cr-598 (PLF), -- F. Supp. 3d --, 2023
WL 8472628, at *20 (D.D.C. Dec. 6, 2023); see also United States v. Hawkins, 185 F. Supp. 3d
114, 124 (D.D.C. 2016) (CKK).
While at the FHPD station, Defendant wrote the allegedly falsified probable cause
statement, which stated that following the arrest, “Dupree transported [T.S.] to DOC Upper
Marlboro jail without incident.” Id.; id. Ex. No. 1 at 8. Evidence that Defendant did not in fact
transport T.S. to DOC directly is relevant to some of the elements of the Section 1512(b)(3)
offense, i.e., that he knowingly engaged in misleading conduct when writing the probable cause
statement.
Next, as for the statements that Defendant allegedly made to T.S., the Court finds that they,
too, are relevant to the Section 1512(b)(3) charge. The Government contends that upon arriving
at the FHPD station, Defendant pushed T.S. into a chair and told him that he “fucked up his night”
because Defendant was “going to get some [expletive,]” and that T.S. was now “going to jail for
that.” Gov.’s Opp’n at 9. As the Government explains, “[t]his statement shows that Dupree acted
intentionally, both to punish T.S. for ruining his night and by engaging in misleading conduct to
8 cover-up Dupree’s use of excessive force by lodging false charges against T.S.” Id. Accordingly,
the Court finds that these statements are relevant to the mens rea required by Section 1512(b)(3).
See Zabavsky, 2023 WL 8472628, at *20 (“knowingly… with the specific intent…”). And, as the
Government indicates, such statements would be admissible as non-hearsay as statements against
interest. See Gov.’s Opp’n at 9; Fed. R. Evid. 801(d)(2)(A) (a statement that “is offered against
an opposing party and [] was made by the party in an individual or representative capacity” is not
hearsay).
Defendant argues that this evidence is also unfairly prejudicial, as it “impermissibly casts
unnecessary and unsubstantiated suspicion on Officer Dupree’s motives and emotions.” Def.’s
Mot. at 14. He does not present any further support for this claim. The Court finds that Defendant
has failed to sufficiently show that this evidence presents a danger of unfair prejudice to lead to its
exclusion. If Defendant so requests during trial, the Court can issue a limiting instruction to ensure
that the jury does not consider such evidence for other purposes. See Fed. R. Evid. 105.
Accordingly, the Court holds that, at this time and based on the arguments presented in the
pleadings, the Government is not precluded from introducing evidence that Defendant allegedly
brought T.S. to the FHPD station instead of directly to DOC and evidence of the statements
allegedly made by Defendant to T.S. during that intervening period. The Court therefore DENIES
Defendant’s motion to preclude the Government from raising such evidence.
C. Defendant’s Past Employment
Defendant states that “[f]or the reasons set forth in Officer Dupree’s motion in limine to
preclude the Government’s purported Rule 404(b) evidence and his opposition to the
Government’s motion to admit certain evidence of prior acts, any evidence regarding Officer
Dupree’s employment history and prior complaints should be excluded as irrelevant, improper,
9 and unfairly prejudicial.” Def.’s Mot. at 15. In their response, the Government references their
arguments made in support of their [32] Motion in Limine and in response to Defendant’s [33]
Motion in Limine, both of which involved Rule 404(b) Evidence. Gov.’s Opp’n at 1.
The Court previously issued an order deferring ruling on those Rule 404(b) Motions,
finding that the prior employment evidence offered by the Government is relevant to material
issues other than character under Rule 404(b), with the exception of evidence regarding
Defendant’s allegedly excessive force incident involving the previous arrestee for the purpose of
showing motive, but holding that the Court reserves its analysis and decision regarding whether
the probative value of this evidence is substantially outweighed by the prejudice under Federal
Rule of Evidence 403 until trial. See Order, ECF No. 63; Mem. Op., ECF No. 64. The Court
DENIES AS MOOT Defendant’s Motion here insofar as he seeks a ruling on whether such
prior employment evidence will be admitted under Rule 403, as it is addressed by the Court’s
ruling in its [63] Order.
D. Testimony from Law Enforcement Officers Not Employed by FHPD
Finally, Defendant asks that the Government be precluded from introducing certain
evidence from officers who were not employed by FHPD but who responded to the scene of
T.S.’s arrest.
Before the grand jury, the Government asked two such law enforcement officers—
Metropolitan Police Department Officer Lancelot Francioni and Prince George’s County Police
Department Officer Jason Buie—to testify regarding their training and the policies governing
their respective departments. Def.’s Mot. at 13. They were also asked whether Defendant’s
pepper spray deployment was a permissible use of force and whether he should have reported his
use of pepper spray. Id. The Court notes that the rules of evidence do not apply to grand jury
10 proceedings. Fed. R. Evid. 1101(d)(2).
All parties now agree that officers employed by departments other than the FHPD cannot
testify about their own police department policies, as FHPD policy was the only department
policy applicable to Defendant Dupree at the time of the incident. See Gov.’s Suppl. Opp’n at
1;5 Def.’s Mot. at 13. However, the Government argues that these officers should be able to
testify about their training related to federally applicable or constitutional law, their experience
as police officers generally, and use of force. Gov.’s Suppl. Opp’n at 1–2. They also argue that
these officers should be able to testify as to “what they would have done in response to [] T.S.’s
unruly behavior,” id. at 3, and also “their lay opinion as to whether T.S. presented any kind of a
threat to the defendant,” id. at 4, for example.
The Court begins by affirming that these officers may provide eyewitness testimony
regarding the events that unfolded on August 4, 2019. See Def.’s Reply to Suppl. Opp’n at 1
(“… Officer Dupree has no objection to fellow law enforcement officers testifying about what
they saw, heard, and did in responding to a [] traffic stop that took place on August 4, 2019”).
The Government indicates, for example, that the officers “did not see T.S. attempt to bite the
defendant or engage in any assaultive or otherwise threatening conduct toward the defendant
before the defendant deployed pepper spray against T.S.” Gov.’s Suppl. Opp’n at 3. This type
of eyewitness testimony can be presented to the jury at trial.
The officers cannot provide expert testimony of any kind, whether about use of force,
police training, acceptable police behavior or otherwise. “[Federal Rule of Evidence] 702
governs testimony from expert witnesses—those who testify based on scientific, technical, or
5 In their opposition brief, the Government did not respond to this issue raised in Defendant’s motion but, after the Court’s prompting, submitted a supplemental response, see Gov.’s Suppl. Opp’n, to which Defendant then replied, see Def.’s Reply to Suppl. Opp’n. 11 specialized knowledge in a field of expertise.” United States v. Smith, 640 F.3d 358, 365 (D.C.
Cir. 2011). These officers were not offered as experts, see Government’s Expert Notice, ECF
No. 31, and therefore cannot provide expert testimony pursuant to Rule 702.
The officers can, however, provide lay opinion testimony in accordance with Federal
Rule of Evidence 701. Rule 701 permits lay testimony in the form of an opinion when it is
“rationally based on the witness’s perception; [] helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and [] not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.
As is the case here, “[j]udicial scrutiny of a law-enforcement witness’s purported basis
for lay opinion is especially important because of the risk that the jury will defer to the officer’s
superior knowledge of the case and past experiences with similar crimes.” United States v.
Hampton, 718 F.3d 978, 981–82 (D.C. Cir. 2011). Crucially, “[l]ay opinion is proper when it is
based upon personal knowledge of events that occurred in the case being tried,” but not when it
is based on knowledge from other law enforcement experience generally. United States v.
Williams, 827 F.3d 1134, 1156 (D.C. Cir. 2016), cert. denied sub nom. Edwards v. United States,
137 S. Ct. 706 (2017); see also United States v. Miller, 738 F.3d 361, 372 (D.C. Cir. 2013) (“FBI
Agent Sparks’ testimony about criminal enterprises and investigative techniques appeared to be
premised on his specialized knowledge as a criminal investigator, rather than his particularized
knowledge of how the Miller/Eiland drug operation was investigated. As such, its admission was
plainly erroneous.”); United States v. Smith, 640 F.3d 358, 365 (D.C. Cir. 2011) (quoting United
States v. Wilson, 605 F.3d 985, 1026 (D.C. Cir. 2010)) (“An individual testifying about the
operations of a drug conspiracy because of knowledge of that drug conspiracy… should be
admitted as a lay witness; an individual testifying about the operations of a drug conspiracy
12 based on previous experiences with other drug conspiracies… should be admitted as an expert.”);
United States v. Guerrero, 665 F.3d 1305, 1309-10 (D.C. Cir. 2011) (“a witness may testify as to
the typical characteristics of drug trafficking operations only if first qualified as an expert
pursuant to Fed. R. Evid. 702.”). The D.C. Circuit has “drawn [this] line because knowledge
derived from previous professional experience falls squarely ‘within the scope of Rule 702’ and
thus by definition outside of Rule 701.” Smith, 640 F.3d at 365.
The Court holds that the officers may present lay opinion testimony only to the extent
that it is based on their personal knowledge, observations, or experiences relating to the specific
events on August 4, 2019. Federal Rule of Evidence 701 was designed to ensure that any
opinions offered by a lay witness are based on personal, “first-hand knowledge or observation,”
Fed. R. Evid. 701 adv. comm. note (1972 proposed rule), and “a process of reasoning familiar in
everyday life,” Fed. R. Evid. 701 adv. comm. note (2000 amend.); see also Wilson, 605 F.3d at
408 (explaining that Rule 701’s “requirement ensures that lay testimony is the product of
reasoning processes familiar to the average person in everyday life”) (citation omitted).
Accordingly, permissible lay opinion testimony would include, for example, that they did not
believe T.S. engaged in any threatening conduct toward Defendant, or that they did not observe
any conduct that they think should warrant the use of force, see Gov.’s Suppl. Opp’n at 3, so
long as this opinion is based on their personal knowledge and observation of the incident.
The Court holds that the officers may not present opinion testimony based on their
previous law enforcement experiences with other traffic stops, their general knowledge or
experience as law enforcement officers regarding use of force, or the like. For example,
testimony on what they would have done as officers in Defendant Dupree’s position based on
their experience, Gov.’s Suppl. Opp’n at 3, whether Defendant should have reported his use of
13 pepper spray, see Def.’s Mot. at 13, that an officer is not allowed to use force if an arrestee is
“mouthing off,” Gov.’s Suppl. Opp’n at 3, what techniques should be used during traffic stops,
what Defendant should have done if T.S. was being combative, Def.’s Reply to Suppl. Opp’n at
2, what could warrant the use of pepper spray, id., or other similar testimony is not allowed.
Such testimony is not based on anything “familiar in everyday life.” Fed. R. Evid. 701 adv.
comm. note (2000 amend.). The officers also cannot testify as to training received, particularly
that which would not have been applicable to Defendant at the time of his encounter with T.S.
This would include, for example, the training offered by the Metropolitan Police Department
regarding use of force. See Def.’s Reply to Suppl. Opp’n at 2 (citing Officer Francioni’s grand
jury testimony).
Moreover, the Court holds that the bases of these officers’ opinions must be made known
to the jury in such a way that the jury can assess the opinion and test the witnesses’ reasoning.
The D.C. Circuit has made clear that a law enforcement agent testifying as a lay witness must
“identify for the jury the specific observations and inferences on which he grounds each lay
opinion.” Williams, 827 F.3d at 1160. Additionally, the witnesses may not simply state that
their opinions are based generally on their overall knowledge of Defendant’s encounter with
T.S., or on aspects of that encounter not made known to the jury. Id. at 1158; Hampton, 718
F.3d at 983 (holding that law enforcement witness did not provide sufficient basis for lay opinion
testimony because he stated it was based on recorded calls not all of which were admitted into
evidence); Miller, 738 F.3d at 373 (holding that admission of lay opinion from law enforcement
agents “was erroneously admitted because they did not set forth the specific bases (events, other
calls, seizures of contraband, etc.) upon which their opinions rested—other than broad claims
about knowledge they had gained from the investigation.”). The jury must be informed of the
14 precise bases of the officers’ opinions and those bases must be available for the jury itself to
consider.
Accordingly, the Court GRANTS Defendant’s motion regarding testimony of officers
not employed by FHPD and holds that such eyewitness law enforcement officers can only
provide lay opinion testimony.
III. CONCLUSION
For the reasons set forth above, the Court shall DENY Defendant’s motion to preclude the
Government from introducing evidence of whether Defendant was outside his jurisdiction when
he arrested T.S. in the District of Columbia, whether Defendant violated FHPD policy by not
turning on his body-worn camera, whether Defendant’s use of his personal vehicle rather than a
FHPD police cruiser was proper, and whether Defendant violated FHPD policy by taking T.S. to
the FHPD station. The Court shall DENY Defendant’s motion to preclude the Government from
introducing evidence that Defendant allegedly brought T.S. to the FHPD station instead of directly
to DOC and evidence of the statements allegedly made by Defendant to T.S. during that
intervening period. The Court shall DENY AS MOOT Defendant’s motion seeking to exclude
evidence of his prior employment under Rule 403, as it is addressed by the Court’s ruling in its
[63] Order. And finally, the Court shall GRANT Defendant’s motion regarding testimony of
officers not employed by FHPD and holds that such eyewitness law enforcement officers can only
An appropriate Order accompanies this Memorandum Opinion.
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge