First Circuit Notes Agent's Testimony, While Unwarranted, Was Not "Overview" Testimony

In possession and distribution of child pornography case involving the Internet, police agent's testimony identifying the defendant as the user who distributed the charged child pornography was not improper "overview" testimony, but it should have been excluded as inappropriate lay opinion testimony not based on the witness's personal observations under FRE 602 and as not "helpful" to the jury under FRE 701, in United States v. Vazquez-Rivera, __ F.3d __ (1st Cir. Dec. 22, 2011) (No. 10-1930)

The Federal Evidence Blog has noted in the past several cases in which the First Circuit has been critical of the use of law enforcement "overview" testimony. See, e.g., Non-Expert “Overview Testimony” Must Be Based On Witness's Personal Knowledge (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); First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony (After prior admonitions, First Circuit warns prosecutor that failure to avoid the problems in using an “overview” witness may result in possible sanctions or disciplinary action.). Last month the First Circuit ventured again into an examination of the propriety of "overview" testimony. Unlike previous cases, the circuit found that the testimony was not objectionable because it was in the nature of an "overview" but rather that it was not entirely based on the witness's personal observation under FRE 602 and consequently was not "helpful" to the jury under FRE 701. The case provides another instructive use of trial court "overviews" by police agents.

In the case, government agent Segarra went "online posing as a Puerto Rican fourteen-year-old girl." With this identity the agent connected on line with a the screen name used by the defendant, Vazquez-Rivera. Ultimately, the agent obtained sufficient information to search the defendant's residence and computers. The government found "over one-hundred images of child pornography" on it, which also included two images sent to the agent. The defendant was charged with possession and distribution of child pornography. After he was convicted, the defendant appealed contending the trial judge erroneously admitted the agent's testimony. The First Circuit agreed, but not because the testimony was improper overview testimony, as the defense contended. Rather the circuit found the agent's testimony could be excluded because it was not based on her own personal observations under FRE 602 and as ultimate lay opinion testimony, was not helpful under FRE 701.

The circuit explained its reasoning that the agent's testimony was not improper overview testimony, which the circuit had previously criticized in "several of our recent cases." Vazquez-Rivera, __ F.3d at __ (citing United States v. Meises, 645 F.3d 5 (1st Cir.2011); United States v. Flores–de–Jesús, 569 F.3d 8 (1st Cir.2009)).

Instead, the testimony was just fine for purposes of an overview of the case. It was not improper law enforcement overview testimony because:

The problematic form of this testimony consists of declarations by a witness—commonly a law enforcement officer involved in the investigation at issue—presented early during trial to describe the government's general theory of the case. We have denounced the use of this kind of 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 evidence.” In doing so, we have noted that the problems inherent in such testimony are patently clear “if the evidence promised by the overview witness never materializes,” but have warned that even if the substance of the witness's preview is later corroborated during trial, the overview testimony of a law enforcement agent still represents a problematic “endorsement of the veracity of the testimony that will follow.”
Vazquez-Rivera, __ F.3d at __ (citing United States v. Meises, 645 F.3d 5, 14 n.13 (1st Cir. 2011) (noting such evidence “often provides an anticipatory summary of the prosecution's case by previewing the testimony of other witnesses”); United States v. Flores–de–Jesús, 569 F.3d 8, 18 (1st Cir. 2009); United States v. Rosado–Pérez, 605 F.3d 48, 55 (1st Cir. 2010) (characterizing improper overview testimony as used before the government has presented its case, in which the "government witness testifies about the results of a criminal invest

The First Circuit warned that in the defendant's particular case, the agent's testimony was not objectionable as improper overview testimony. Yet this conclusion was not intended to in anyway to:

"detract[] from our prior admonishments regarding overview testimony, we believe that the trial declarations at issue here can be distinguished from the ones we considered problematic in those cases. In the instant case, Agent Segarra took the stand as the government's penultimate witness on the first day of a five-day trial and, as such, did not “preview” the government's case. However, as we now explain, we still find that much of Agent Segarra's testimony bore distinct and serious deficiencies and should not have reached the jury.
Vazquez-Rivera, __ F.3d at __ (citing United States v. Hall, 434 F.3d 42, 56–57 (1st Cir. 2006) (noting appellant's reliance on cases discussing overview testimony “misplaced” where testimony in question proffered “near the end of the government's case-in-chief”).

Instead, the problem with the agent's evidence was that it was not in conformity with FRE 701, since the agent identified the defendant as the distributor of child pornography, which was "the ultimate issue before the jury." It was an opinion of the case's ultimate issue because the government had to show "whether the conduct the government observed on its end of the computer screen could be imputed to [defendant] Vázquez," as the agents "did not directly observe the individual chatting with Agent Segarra." This ultimate opinion testimony placed the defendant's

fate [which] depended on whether the government could prove to the jury beyond a reasonable doubt that the evidence it had against him—most of which was circumstantial in nature—placed him at the other end of these online conversations. While ultimate issue opinions are not always prohibited, lay testimony of this nature must comport with the requirement that proffered testimony be helpful to the jury. On these facts, we are compelled to reaffirm our warning that lay opinions going to the ultimate issue will rarely meet this requirement, “since the jury's opinion is as good as the witness's.

Agent Segarra's testimony was also improper because her statements were based in large part on the overall investigation rather than her personal observations. Despite being closely involved in all aspects of the underlying investigation, Agent Segarra never personally observed Vázquez chatting on the seized computers on the mentioned dates, nor, for example, was her testimony based on surveillance of the premises that would place Vázquez inside the residence with the computer at the time the chats occurred.
Vazquez-Rivera, __ F.3d at __ (citing FRE 701(b); FRE 603; United States v. García, 413 F.3d 201, 214 (2d Cir. 2005) (“If such broadly based opinion testimony as to culpability were admissible under Rule 701, ‘there would be no need for the trial jury to review personally any evidence at all.’) (quoting United States v. Grinage, 390 F.3d 746, 750 (2d Cir.2004)); United States v. Rosado–Pérez, 605 F.3d 48, 55 (1st Cir.2010). (noting “basic principle in the Federal Rules of Evidence that witnesses, other than experts giving expert opinions, should testify from personal knowledge”))

Few circuits have been as active as the First in assessing improper government overview testimony. As Vazquez-Rivera suggests, even if not clearly "overview" testimony, an agent's testimony that is based on a lack of personal knowledge and opining on the ultimate issue in the case still is not admissible at trial.


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