When a witness testifies as to both facts and expert opinions, the court will treat him as a dual capacity expert.

The court, in US v. Tucker, 714 F. 3d 1006 – Court of Appeals, 7th Circuit 2013 dealt with an appeal of a drug conviction.

The court upheld the conviction finding that a properly structured direct examination can assist the jury when a dual capacity expert is testifying.

The court stated:

Tucker next argues that the Government improperly used Officer Baranek as a “dual capacity” witness, without giving the jury any guidance on how to properly evaluate such testimony. A “dual capacity” witness weaves fact and expert opinion testimony together, and “[t]hough such a practice is routinely upheld, particularly where experienced law enforcement officers were involved in the particular investigation at issue, there are inherent dangers involved….” United States v. York, 572 F.3d 415, 425 (7th Cir.2009) (internal citations omitted). For example, the jury may “unduly credit the opinion testimony of an investigating officer based on a perception that the expert was privy to facts about the defendant not presented at trial.” Id. (citing United States v. Upton, 512 F.3d 394, 401 (7th Cir.2008)). Therefore, district courts must take precautionary measures to ensure the jury understands how to properly evaluate the evidence as presented. Such safeguards can include cautionary jury instructions, a properly structured direct examination which makes clear when the witness is testifying as to facts or when he is offering his expert opinion, establishing the proper foundation for the expert component of the testimony, and allowing for the rigorous cross-examination of the dual capacity witness. York, 572 F.3d at 425.

Here, both sides agree that Officer Baranek testified as a dual capacity witness. Again, as no objection was raised, our review is limited to plain error. United States v. Christian, 673 F.3d 702, 708 (7th Cir.2012). Although the record in this case would surely not serve as a model on how to properly manage a dual capacity witness, the prosecutor did lay a foundation for Officer Baranek’s expertise, noting his twelve years of experience in drug investigations and nine years of service on the Drug Enforcement Unit. Officer Baranek was also subject to cross-examination and a re-cross, where his “expert” testimony concerning the role of controlled buys and stash houses in drug investigations was probed by defense counsel. Further, Tucker does not question Officer Baranek’s qualifications, and there is little doubt he would have been able to be qualified as an expert, thus failure to “formally anoint” him as such is harmless. See York, 572 F.3d at 422. Although we agree with Tucker that Officer Baranek’s dual capacity testimony could have been more deftly conducted, we do not find plain error.  As in Christian, “given that the safeguards taken (although they could have been better) helped [to] alleviate the risk of jury confusion, we do not find a miscarriage of justice in the blending of dual testimony.” Christian, 673 F.3d at 714.

Gary Trugman CPA will be speaking on direct examination at the SEAK National Expert Witness Conference to be held on May 3-4, 2014 in Orlando.