In almost every street-level drug case, the key witness is a narcotics officer who watched the defendant from a distance. The officer describes what he saw: short conversations, money going one way, small objects going the other. Then the prosecutor asks the question that matters. Based on what you saw and your experience, what was the defendant doing?
The defense objection is familiar. The officer was never qualified as an expert, so he should describe what he saw and let the fact-finder draw the conclusion. Two appellate courts have now addressed that objection within four months of each other. The Superior Court decided Commonwealth v. James, 2026 PA Super 211 (Pa. Super. filed Sept. 22, 2026) (Sullivan, J., joined by Lazarus, P.J., and Panella, P.J.E.), on September 22. The Third Circuit decided United States v. Evans, No. 24-2156 (3d Cir. May 19, 2026) (Restrepo, J., joined by McKee and Ambro, JJ.), a precedential opinion, in May. The rules the two courts applied are worded almost the same, and the courts reached largely consistent answers. They explained those answers differently, though, and Evans drew a distinction that James did not have occasion to reach.
The Rule Both Courts Applied
Pennsylvania Rule of Evidence 701 and Federal Rule of Evidence 701 both govern opinion testimony from a witness who has not been qualified as an expert, called a lay witness. Under both rules, a lay opinion is admissible only if it is (a) rationally based on what the witness perceived, (b) helpful to understanding the witness’s testimony or deciding a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge that belongs to expert testimony under Rule 702.
The third requirement is the one at issue in these cases. Its purpose, as the Third Circuit explained in Evans, is to stop a party from giving a witness the authority of an expert without meeting the requirements for expert testimony. Those requirements include qualifying the witness and, in federal court, disclosing the expert’s opinions before trial.
Commonwealth v. James
In July 2023, Philadelphia Narcotics Strike Force Officer Brian Outterbridge set up surveillance on the 3100 block of G Street. He watched Carl James and another man take money from several people and hand them small objects. Backup officers stopped the buyers and found packets of suspected heroin stamped “Drive-Thru.” When an officer approached, James ran and dropped eighty packets on the sidewalk. The packets turned out to contain fentanyl and xylazine.
At a bench trial, Officer Outterbridge testified that he had been with the Strike Force for about five years and had run more than one hundred narcotics surveillances, twenty-five of them on G Street. The prosecutor asked him what he thought James was doing. Defense counsel objected that this was improper lay opinion. The trial court overruled the objection, and the officer testified that he believed he had watched James sell drugs.
On appeal, James relied on Commonwealth v. Carter, 589 A.2d 1133 (Pa. Super. 1991). In Carter, officers testified to what they saw and were then qualified as experts and allowed to tell the jury that the pattern they observed was consistent with drug dealing. The Superior Court held that was prejudicial, because jurors would defer to the officers’ expertise instead of judging their credibility. James asked the court to extend Carter to lay opinion testimony in a bench trial.
The court declined. It read Carter narrowly, as a case about expert testimony from officers who were also fact witnesses, given before a jury. For lay opinion, it relied on Commonwealth v. Berry, 172 A.3d 1 (Pa. Super. 2017), where officers were allowed to testify that droplets they saw were blood, and on the driving-under-the-influence cases, such as Commonwealth v. Nestor, 314 A.3d 863 (Pa. Super. 2024), which let officers give a lay opinion that a driver was impaired based on observations informed by their training. As the court put it, a lay witness cannot be expected to forget his training and experience when he takes the stand. The court also pointed to Rule 704, which says an opinion is not objectionable just because it addresses the ultimate issue in the case.
The court held that Officer Outterbridge’s opinion, while informed by his experience, did not go beyond what an average layperson who witnessed a drug transaction would understand. It was admissible lay opinion. In a footnote, the court added that any error would have been harmless anyway, because a judge sitting without a jury is presumed to disregard inadmissible evidence.
United States v. Evans
Evans arose from a search of a Jersey City hotel room that turned up about 13,000 glassine bags of drugs, stamps, stamp pads, scales, a press, a grinder, cutting agents, and about $8,000 in cash. At trial, Detective Costigan, who helped search the room, testified about what the items meant. Evans objected that the detective was giving expert opinions as a lay witness.
The Third Circuit agreed in part. Detective Costigan’s opinions about the specific items he saw in the room were admissible: that the stamps and stamped bags indicated drug sales, that the residue-covered tools were used to make and package drugs, and that the quinine found there is used to cut heroin. The court acknowledged that some of these opinions were technical. But under the Third Circuit’s cases, knowledge gained from work experience can support a technical lay opinion, so long as the witness personally perceived the facts the opinion rests on.
The detective’s testimony about how drug traffickers operate in general was different. His explanations of how dealers typically package drugs, why they carry guns to protect their cash, what the denominations of their cash reveal, and his summary that the room held everything one “would need to manufacture and package narcotics” were not tied to anything he saw. The court held those opinions were expert testimony that should not have been admitted under Rule 701. Opinions drawn from experience unconnected to the evidence, the court said, amount to argument presented as lay testimony and take over the jury’s job.
Evans still lost. The error was harmless because the evidence was overwhelming and because Evans never really disputed that the room held a drug operation. His defense was that it wasn’t his.
Where the Two Decisions Line Up
Both courts accept that an officer’s training and experience can shape a lay opinion, and both require that the opinion be anchored in what the officer personally saw. Officer Outterbridge’s opinion was about specific exchanges he watched on G Street. That falls in the category Evans permitted, the category of opinions tied to evidence the witness perceived.
Both courts also share the concern that animated Carter: that a jury will defer to a witness’s apparent expertise instead of evaluating the evidence. Carter addressed that concern through the expert rules. Evans addressed it through Rule 701(c), by keeping general testimony about how traffickers operate out of lay testimony altogether.
And both courts found any error harmless, though for different reasons. In Evans, the improper testimony went to an issue the defense did not contest. In James, the fact-finder was a judge presumed to ignore improper evidence.
Where They Differ
The courts gave different reasons for why the testimony was lay opinion. James held that Officer Outterbridge’s opinion was not based on specialized knowledge at all, because an average person who saw the exchanges could understand them. Evans accepted that Detective Costigan’s opinions were sometimes specialized and technical, and held them admissible anyway because they rested on his own perception of the evidence. Under Evans, personal perception separates admissible lay opinion from expert opinion. Under James, the question is whether the opinion goes beyond ordinary knowledge.
That difference connects to the second requirement of Rule 701–helpfulness. Evans repeated the Third Circuit’s rule that a lay opinion interpreting facts the jury is equally able to understand is not helpful and should be excluded, and that a lay opinion should give the jury insight it could not get from the evidence itself rather than supply the conclusion the government wants. James held that the officer’s opinion did not exceed what an average layperson would understand, and also that it was helpful.
The second difference is what each case had in front of it. The James opinion describes testimony about transactions the officer watched. It does not report the officer explaining how drug dealers generally operate, so the Superior Court did not decide whether that kind of testimony is admissible from a lay witness. Evans decided it is not, at least in federal court. The Superior Court did not cite Evans, and Third Circuit decisions do not bind Pennsylvania courts.