Non-Expert “Overview Testimony” Must Be Based On Witness's Personal Knowledge

In drug distribution conspiracy case, government agent's testimony did not provide improper overview to jury because he testified from personal knowledge and explained drug activity and coded language to the jury, based on his experience in the investigation of the defendants, in United States v. Rosado-Perez, 605 F.3d 48 (1st Cir. May 14, 2010) (Nos. 08-1900, 08-2181, 08-2164, 08-2183, 08-2166)

Last year, the Federal Evidence Blog noted a criticism by the First Circuit of the government's use of “overview” prosecution witness. See First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony”. The blog post highlighted that after prior admonitions, the First Circuit warned prosecutors that failure to avoid the problems in using “overview” witnesses may result in possible sanctions or disciplinary action. United States v. Flores-De-Jesus, 569 F.3d 8 (1st Cir. June 18, 2009).

Although the First Circuit's has not retreated from its criticism of the use of prosecution overview witnesses,it seems that it has found that its criticisms are not ignored. In an opinion in a drug conspiracy case published this month, United States v. Rosado-Perez, the circuit considered defendants' challenge to their convictions based in part on the prosecutor's alleged use of overview testimony by a police investigator. As stated by the circuit in previous opinions, testimony by an overview witness is not improper and indeed could be “appropriate” if the witness limits his or her testimony to expressing views “based on the agent’s personal knowledge.” The circuit found that this was precisely what was happening - and was happening in the case of United States v. Rosado-Perez .

In the case, two defendants of a multi-defendant drug distribution conspiracy challenged their conviction based in part on the government's use of an overview law enforcement witness, a FBI Special Agent. The agent had been the lead investigator in the defendant's case and while testifying “the government played for the jury video tapes of conspiracy members participating in drug activity and wiretap recordings of phone conversations between conspirators.” The circuit noted that the witness's testimony was used to “place[] the videos and recordings in the context of this conspiracy.” The agent therefore “identified members of the conspiracy and their roles and related what they were doing and saying to the broader conspiracy.” The circuit found no problem in such use.

The circuit specifically noted its previous concerns with overview witnesses and the evidentiary principles that guided a proper approach to overview evidence:

“We have previously cautioned that prosecutors should not permit investigators to give overview testimony, in which a government witness testifies about the results of a criminal investigation, usually including aspects of the investigation the witness did not participate in, before the government has presented supporting evidence. Overview testimony at times involves a witness's assertion of facts not based on his own knowledge when those facts are not otherwise proven. “

“The justification for the use of summary testimony was to be found in “the basic principle in the Federal Rules of Evidence that witnesses, other than experts giving expert opinions, should testify from personal knowledge. A foundation should be laid establishing the basis of a witness's knowledge, opinion, or expertise."

Rosado-Perez, 605 F.3d at 55 (citing United States v. Rodriguez, 525 F.3d 85, 95-96 (1st Cir.2008);Casas, 356 F.3d at 118-20); Fed.R.Evid. 602, 701, 702; United States v. García-Morales, 382 F.3d 12, 17 (1st Cir. 2004) (criticizing overview testimony “that [the defendant] was a member of the drug conspiracy, even though the prosecution had not yet introduced evidence supporting this conclusion”))

Yet the circuit seemed to resolvee the challenge by concluding that the challenged special agent testimony as not actually overview witness testimony:

“The district court did not abuse its discretion in admitting Chavez's testimony about how the videos and wiretap recordings fit into the rest of the conspiracy as based on Chavez's personal knowledge. The prosecution laid a foundation that Chavez had personal knowledge of the conspiracy and its membership. He was a lead investigator; went to El Cerro at least fifty times; and repeatedly participated in video and personal surveillance, wiretap surveillance, and controlled drug buys. He testified that his knowledge was based on his personal observations.

“If a proper foundation is laid, government witnesses may testify about matters within their personal knowledge and give lay or, if qualified, exert opinion testimony. Relevant here, we have long held that government witnesses with experience in drug investigations may explain the drug trade and translate coded language for juries, either through lay or, if qualified, expert testimony. This testimony is not overview testimony and is properly admitted.”
Rosado-Perez, 605 F.3d at 56.

The Rosado-Perez case dismissed the defendant's contention that the agent's testimony was overview testimony. But the circuit had previously established a set of factors that could be used when evaluating this testimony. These danger signals include:

  • The agent may testify about matters which are not based on personal knowledge and may fail to “differentiate the testimony that was based on personal knowledge from other sources of information, often hearsay,”
  • Overview “testimony raises the very real specter that the jury verdict could be influenced by statements of fact or credibility assessments . . . not in evidence.”
  • The overview testimony may not be consistent with testimony presented later in the trial or “the evidence promised by the overview witness never materializes.”
  • There is an “imprimatur problem” as a jury may give may give “great weight” to an agent’s testimony which may be “perceived to have the imprimatur of the government.”
  • Confrontation Clause issues under Crawford v. Washington, 541 U.S. 36 (2004) may arise where the agent relies on statements of others, including confidential informants, who do not testify at trial yet implicate the defendants in a conspiracy.
  • Apart from Confrontation Clause issues, the agent’s reliance on the statements of others presents hearsay concerns.
  • Additional problems arise when the overview witness agent testifies as both a fact and expert witness, which raises unfair prejudice concerns based on conflated testimony and also “exacerbates the imprimatur problem.”

Flores-De-Jesus, 569 F.3d at 17-18.

Federal Rules of Evidence