As with any lay witness, a police officer may be able to give opinion testimony under MRE 701. “[A]ny witness is qualified to testify as to his or her physical observations and opinions formed as a result of these observations.” People v Grisham, 125 Mich App 280, 286 (1983).
1.Examples
a.Cell Phone Data
An investigating detective’s “opinion testimony that the telephone records showed evidence of human trafficking” was admissible under MRE 701 because “the detective’s testimony was rationally based on his personal review of the records[.]” People v Thurmond, ___ Mich App ___, ___ (2023).
b.Identification on Surveillance Video
“[T]he trial court abused its discretion when it allowed [a police officer testifying as a lay witness] to identify [the defendant] in a surveillance video,” because this “testimony invaded the province of the jury”; although the officer “could properly comment that, based on his experience, the individual appeared to be concealing a weapon,” the officer “should not have been allowed to identify [the defendant] as that individual” where “[t]here was nothing about the images (i.e. poor quality of the images, defendant wearing a disguise) that necessitated [the officer’s] opinion.” People v Perkins, 314 Mich App 140, 160-162 (2016) (ultimately concluding that “the error was harmless”), vacated in part on other grounds by unpublished order of the Court of Appeals, entered February 12, 2016 (Docket Nos. 323454, 323876, and 325741).28
Contrast with People v Fomby, 300 Mich App 46, 53 (2013), where a police officer certified as a forensic video technician was permitted to give opinion testimony under MRE 701 linking “individuals depicted in [a] surveillance video as being the same individuals depicted in . . . still photographs” because his testimony was rationally based on his perception of the evidence and because it was helpful to the jury in evaluating the evidence to determine a fact at issue in the case. The officer’s opinion testimony “did not invade the province of the jury” because he “did not identify defendant in the video or still images.” Fomby, 300 Mich App at 53.
c.Seatbelt
A police officer was permitted to give opinion testimony under MRE 701 that a plaintiff was not wearing a seat belt at the time of an automobile accident “because his testimony was based on his perceptions at the scene of the accident.” Chastain v Gen Motors Corp (On Remand), 254 Mich App 576, 588 (2002).
d.Cause of Accident
Two police officers’ opinion testimony as to the cause of an accident was inadmissible where the officers did not see the accident and based their conclusions solely upon witness statements taken after the accident. Miller v Hensley, 244 Mich App 528, 531 (2001) (“[b]ecause the officers’ testimony that plaintiff was at fault for the collision was not rationally based on their own perceptions, the testimony was not admissible under MRE 701”).
e.Damage Caused by Bullets
The trial court did not abuse its discretion by accepting opinion testimony from police officers that a car had been dented by bullets because “the officers’ testimony . . . was [not] dependent upon scientific, technical or other specialized knowledge[.]” People v Oliver, 170 Mich App 38, 50-51 (1988), modified in part on other grounds 433 Mich 862 (1989).
f.Visible Intoxication
Two police officers were permitted to give opinion testimony that the defendant was visibly intoxicated. Heyler v Dixon, 160 Mich App 130, 148-149 (1987).
g.Concealment by Defendant
A police officer was permitted to give opinion testimony that the defendant was trying to conceal himself. People v Smith, 152 Mich App 756, 764 (1986) (the officer’s testimony “that when he first spotted the defendant and his accomplice they were standing ‘up against the house . . . trying to conceal themselves from the street or any vehicular traffic’ . . . was clearly based on the witness’s perception and involved a crucial issue, whether defendant was the victim of a crime or a culprit”).
2.Jury Instruction
In a criminal case, a party may request the court to issue a jury instruction pursuant to M Crim JI 5.11, which indicates that the police officer’s testimony is to be judged by the same standards used to evaluate the testimony of any other lay witness.
A police detective may be permitted to provide expert testimony regarding blood stain interpretation. People v Haywood, 209 Mich App 217, 224-225 (1995). In Haywood, the police officer “was clearly qualified by knowledge, experience, and training to testify regarding the bloodstains found in defendant’s apartment. He had received over one hundred hours of training in bloodstain analysis and attended five different seminars. Further, he had utilized that training in approximately one hundred previous cases. Finally, [the police officer] indicated that he was familiar with the literature on the subject and [taught] a course on bloodstain interpretation to other law enforcement officers.” Id. at 225.
“‘Delayed disclosure’ refers to sex abuse victims, including children, not immediately informing others of the abuse that transpired.” People v Dobek, 274 Mich App 58, 76 n 8 (2007). In Dobek, the Court of Appeals concluded that a detective possessed the requisite knowledge, training, experience, and education concerning the sexual abuse of children to be considered an expert capable of testifying about delayed disclosure in sex abuse victims. Id. at 79.
Qualified police officers may testify as experts in controlled substance cases. People v Murray, 234 Mich App 46, 53 (1999). For an officer’s expert testimony to be admissible, “‘(1) the expert must be qualified; (2) the evidence must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue; and (3) the evidence must be from a recognized discipline.’” Id., quoting People v Williams (After Remand), 198 Mich App 537, 541 (1993).
Police expert testimony regarding drug profiles is admissible, but only to the extent that the testimony does “not move beyond an explanation of the typical characteristics of drug dealing[.]” Murray, 234 Mich App at 54. A limiting instruction to the jury is appropriate. See id. at 60-61. M Crim JI 4.17 provides such an instruction on the use of drug profile evidence.
“Drug profile evidence” is “an informal compilation of characteristics often displayed by those trafficking in drugs.” People v Hines, ___ Mich App ___, ___ (2025) (quotation marks and citation omitted). “[D]rug profile evidence is generally inadmissible as substantive evidence of guilt, but trial courts may admit it to explain the significance of other evidence.” Id. at ___. However, “there is often a very fine line between the probative use of profile evidence as background or modus operandi evidence and its prejudicial use as substantive evidence.” Id. at ___ (cleaned up). “Trial courts therefore must make a case-by-case determination to allow drug profile testimony that aids the jury in intelligently understanding the evidentiary backdrop of the case, and the modus operandi of drug dealers, but stop short of enabling profile testimony that purports to comment directly or substantively on a defendant’s guilt.” Id. at ___ (quotation marks and citation omitted). The following “four nonexhaustive factors” are relevant to this analysis:
(1) “the drug-profile evidence must be offered as background or modus operandi evidence, and not as substantive evidence of guilt, and the distinction must be carefully maintained by the attorneys and the court.”
(2) “something more than drug profile evidence must be admitted to prove a defendant’s guilt; multiple pieces of profile do not add up to guilt without something more.”
(3) “the trial court must make clear to the jury what is and is not an appropriate use of the drug-profile evidence by, e.g., instructing the jury that drug-profile evidence is properly used only as background or modus operandi evidence and should not be used as substantive evidence of guilt.”
(4) “the expert witness should not be permitted to express an opinion that, on the basis of the profile, defendant is guilty, and should not expressly compare the defendant’s characteristics to the profile in a way that implies that the defendant is guilty.” Id. at ___ (quotation marks and citation omitted).
In Hines, two police officers, who were “previously assigned to the drug task force, testified about common features and methods of drug trafficking and drug use.” Id. at ___. “Both witnesses provided permissible drug profile testimony and testimony that crossed the line into impermissible comments on [defendant’s] guilt.” Id. at ___ (“[B]oth came close to crossing the line into opining on [defendant’s] guilt or making direct comparisons between [defendant’s] conduct and their stated ‘drug profile’ conduct.”). One drug-profile evidence expert “testified that the police did not find pipes, needles, or items associated with drug use (as opposed to trafficking) during the search of [defendant’s] residence”; the expert “also vaguely opined that the quantity of drugs [defendant] had was not indicative of personal use.” Id. at ___ (“This likely crossed the line into opinion testimony because it directly linked general characteristics to the evidence identified in this case.”). The other expert “opined that the 31 bindles of fentanyl recovered from [defendant] were indicative of packaging for delivery because of the number.” Id. at ___ (“This was inadmissible because it was essentially an opinion of [defendant’s] guilt.”). “Likewise, his comment that a user might purchase more than one bindle but ‘you’re very rarely gonna comma across users with 30 packets, 31 packets’ was impermissible.” Id. at ___ (“It linked common traits directly to the facts of this case.”). “Finally, [the expert] speculated on why [defendant] might not have money with him suggesting that he ‘recently re-upped.’” Id. at ___ (“This too was impermissible.”). “It is difficult to say that the impermissible drug profile evidence made a difference.” Id. at ___ (finding “it arguably made explicit connections a reasonable jury would have already made”). “Considering the total body of evidence,” the Hines Court concluded that defendant could not establish “that but for the impermissible testimony, the trial would have had a different result.” Id. at ___.
A police officer may testify as an expert about the results of field sobriety tests if the “evidence indicate[s] that the officer possess[es] knowledge, training, and experience regarding the field sobriety tests at issue.” People v Peebles, 216 Mich App 661, 667-668 (1996) (the officer was qualified to testify where “he had been a police officer for one year and seven months at the time of the stop . . . and he had received four or five hours of training on the field tests at issue and had received on-the-job training regarding such tests”).
A police officer who had fired sawed-off shotguns was qualified as an expert to testify about their recoil characteristics. People v Douglas, 65 Mich App 107, 117 (1975).
6.Operation of Motor Vehicles
An officer was qualified to testify as an expert about the defendant’s estimated speed at the time of an accident where his training “consisted of four days in an unspecified school and six months work with experienced officers.” People v Ebejer, 66 Mich App 333, 340-343 (1976). Additionally, “the data upon which [the officer’s] opinion was based was sufficient to support the admissibility of the testimony.” Id. at 342-343 (within an hour or so of the accident, the officer made various measurements and examined skid marks, gouge marks, scratches, and photographs he had taken at the scene).
A police officer may give an expert opinion whether a tractor-trailer was properly loaded. Jenkins v Raleigh Trucking Servs, Inc, 187 Mich App 424, 429-430 (1991) (noting “defendants offered expert testimony to the contrary”).
A testifying detective’s “expertise did not extend to offering a profile of the ‘certain way’ in which those who kill in self-defense act during interrogations,” and “the trial court’s decision to admit [the detective’s] expert testimony in [that] regard fell beyond the range of principled outcomes”; the detective’s participation in an unidentified number of previous cases in which individuals claimed to have acted in self-defense did not “qualif[y] him to offer expert opinions regarding whether individuals act a ‘certain way’ after killing in self-defense as well as whether defendant’s behavior . . . was consistent with that ‘certain way.’” People v Dixon-Bey, 321 Mich App 490, 505 (2017). The detective’s “expertise was in the area of interpreting evidence at homicide investigations, not in psychology or some other behavioral science,” and while an officer “need not necessarily be a psychologist to offer this type of testimony, it is equally true that he does need to have the requisite knowledge, skill, experience, training, and education to be qualified as an expert in the area about which he is offering expert testimony[.]” Id. at 505, 509 (further concluding that the error was not outcome determinative).
Committee Tip:
Care should be taken in evaluating the admissibility of expert testimony from traditional fields of expertise.
C.Testimony About Defendant’s Statement
MCL 763.8(2) provides that “[a] law enforcement official interrogating an individual in custodial detention regarding the individual’s involvement in the commission of a major felony shall make a time-stamped, audiovisual recording of the entire interrogation.[29] A major felony recording shall include the law enforcement official’s notification to the individual of the individual’s Miranda[30] rights.” MCL 763.8(2).
However, “[a]ny failure to record a statement as required under [MCL 763.8] or to preserve a recorded statement does not prevent any law enforcement official present during the taking of the statement from testifying in court as to the circumstances and content of the individual’s statement if the court determines that the statement is otherwise admissible.” MCL 763.9.31
28.For more information on the precedential value of an opinion with negative subsequent history, see our note.
29.MCL 763.8 “applies if the law enforcement agency has audiovisual recording equipment that is operational or accessible as provided in [MCL 763.11(3) or MCL 763.11(4)] or upon the expiration of the relevant time periods set forth in [MCL 763.11(3) or MCL 763.11(4)], whichever occurs first.” MCL 763.8(1).
30.Miranda v Arizona, 384 US 436 (1966).
31.“[U]nless the individual objected to having the interrogation recorded and that objection was properly documented under [MCL 763.8(3)], the jury shall be instructed that it is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement.” MCL 763.9.