Order of Court
The March 28, 2008, opinion of the court is modified as follows: On page 7, lines 2 through 6, delete
“Experience-derived police testimony concerning criminals’ typical modi oper-andi during a drug transaction does not constitute expert testimony, but lay-witness testimony admissible under Federal Rule of Evidence 701 without any necessity for pretrial disclosure to the defense.”
and insert instead
“Experience-derived police testimony concerning criminals’ typical modi oper-andi during a drug transaction does not automatically constitute expert testimony, but depending on the content and circumstances can be (and here is) lay-witness testimony admissible under Federal Rule of Evidence 701 without necessity for pretrial disclosure to the defense. Ayala-Pizarro does not, contrary to Page’s argument, establish a rule that all experienced-based police officer testimony is per se admissible under Rule 701.”
At the end of this new text, insert a new footnote (number 2)
“One circuit has apparently misread Ayala-Pizarro as doing so. See United States v. Oriedo, 498 F.3d 593, 603 n. 10 (7th Cir.2007). To the extent Oriedo may be read as suggesting that all experienced-based police testimony must be expert testimony, that is contrary to our view of the law.”
The remaining footnotes are to be renumbered accordingly.