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Trial court should have allowed defense witness to testify

Knowles appealed her convictions for the use of an unauthorized access devise and for aggravated identity theft in violation of 18 U.S.C. 1029 and 1028. She was arrested following a traffic stop in which the car she was a passenger in was stopped for having illegally tinted windows. The officer stopping the car was with agent Tippens of the Department of Labor who was part of a task force investigating identity theft and other crimes. Because the driver was on probation for a state fraud offense, the officer asked for and received consent to search the car. He found four Publix Supermarket money orders each for $500 and money order receipts, along with $1,000 in cash in a compartment. Knowles claimed they were all bought with cash.

Tippens later obtained the surveillance videos from the Publix store where the money order were purchased and matched the purchases shown on the video with the dates times and store numbers reflected on the money order and money order receipts found in the car. The money orders were purchased with prepaid debit cards which were obtained under the names and social security number of two individuals whose identities had been stolen. As a result Knowles was charged.

At the trial the government elicited testimony from Tippens who identified Knowles as the person in the Publix surveillance videos who purchased the money orders with the prepaid debit cards. He based his opinion on his frame-by-frame review of the surveillance videos, his comparison of the individual in the videos to photographs of Knowles and his 20 minute interaction with Knowles during the traffic stop.

Prior to trial the government objected to Knowles’s intent to use an expert witness who would testify that in his opinion the person in the Publix surveillance videos was not Knowles. He based his opinion on his two-hour interaction with Knowles, his review of the video which he reduced to frame by frame and his comparison of the photographs he took to the still frames from the videos. The trial court ruled that the witness did not qualify as an expert witness and denied the defendant’s request to admit his testimony as a lay witness merely because he was not competent to testify as an expert witness.

On appeal Knowles challenged Tippens’s testimony as unfairly prejudicial under Rule 403 because he participated in the vehicle stop at which the incrimination money order were found and was therefore cloaked with eh credibility of a law enforcement official. The court rejected the argument because it found that his familiarity with Knowles was based in part on his observations of her during the traffic stop, nor did it find a basis for challenging his identification merely because he was a police officer. The court implied that there may have been an issue if his identification was challenged for the length of time he had to observe Knowles.

The federal appellate court found the federal criminal trial court abused its discretion by not allowing Knowles’ criminal defense lawyer to call the witness to offer a lay witness opinion. The trial judge determined that since the witness did not qualify as an expert witness then the witness could not be called as a lay witness. The appeals court found the trial court erred because the trial court allowed the government to call the officer to give his opinion about the similarity between the video and the Knowles. But the appeals court found the error harmless because the defendant offered two witnesses who were former coworkers who testified that Knowles was not the person depicted in the Publix surveillance photos.

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