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Prosecutions Use and Abuse of Overview Witnesses Called at the Beginning of a Trial

The government on occasion uses as its first witness an agent or some other government representative to act as an overview witness. The overview witness will summarize what the government intends to introduce at trial and to put forth its theory and conclusions to the jury. The case of United States v. Griffin, 324 F. 3d 330 (5th Cir. 2003) provided an example of two such witnesses.

The government called FBI Special Agent Martin who over objection, gave hearsay testimony on ultimate jury issues that were critical to the case. The agent was the government's second witness and testified as to the investigation. Agent Martin presented a chart containing pictures of persons and symbols for the entities involved in the alleged conspiracy. While the witness testified, the prosecutor referred to a picture of one of the defendants on the chart and asked the agent to explain that defendant's role in the alleged conspiracy. Martin's testimony included the following, "Dr. Griffin is on the TDHCA Board, has voting authority over tax credit projects. She also is a 25 % owner in B. Hammond Homes." On cross-examination, the agent testified that his statements concerning Griffin's ownership was not based on personal knowledge but was based on what someone told him.

Throughout the agent's testimony, the defendant's attorney objected on the basis of hearsay. The government responded that Martin's testimony was not being offered for the truth of the matter asserted, but to give a broad overview as to what the agents did during their investigation and why they did it. The prosecutor then stated that the evidence in support of the agent's testimony would be presented later during the trial. The prosecutor also argued that it had documentary evidence to support the agent's testimony. The district court overruled the objection and allowed the testimony to continue for the purposes of orienting the jury because of the complexity of the case. The court also advised the jury that the FBI agent was testifying as to the FBI's point of view and that he did not have personal knowledge of the facts.

Defense objected on the grounds the witness never qualified as an expert witness under Rule 702 of the Federal Rules of Evidence. The defense also argued that there was nothing to summarize because at that time no other witness had testified as to facts. The defense also contended that it was improper for the district court to characterize Martin's testimony as the FBI's point of view.

The court noted that there is an established tradition in the Fifth, as well as other circuits that permits a summary of evidence to be put before the jury with proper limiting instructions. However, it also said that the purpose of such summaries is simply to aid the jury in examining the evidence already admitted. It noted that the FBI agent's evidence had not yet been presented and therefore, he was testifying more as an overview witness than as a summary witness.

The court stated at page 349:

This court has never had the opportunity to address the issue of an overview witness where the witness is put on the stand to testify before there has been any evidence admitted for the witness to summarize. We unequivocally condemn this practice as a tool employed by the government to paint a picture of guilt before the evidence has been introduced. Permitting a witness to describe a complicated government program in terms that do not address witness credibility is acceptable. However, allowing that witness to give tendentious testimony is unacceptable. Allowing that kind of testimony would greatly increase the danger that a jury "might rely on the alleged facts in the [overview] as if [those] facts had already been proved," or might use the overview "as a substitute for assessing the credibility of witnesses" that have not yet testified.Scales, 594 F. 2d at 564. We hold, therefore, that the district court abused its discretion in allowing the government to utilize Martin as an overview witness to testify to issues in dispute.

In addressing the issue of whether the police should be allowed to testify as expert witnesses on criminal conduct, see the case of United States v. Mejia, 545 F. 3d 179 (2d Cir. 2008). In Mejia, a police officer was allowed to testify as an expert witness about the gang to which the defendant belonged. He testified to the number of murders allegedly committed by the gang and summarized the results of the police investigation of the gang. The court held that this testimony went beyond the bounds which expert testimony would have assisted the jury in understanding the evidence.

In discussing this matter, the court in Mejia at page 196 wrote:

Testifying as he did, Alicea's evidence runs afoul of our admonition in Dukagjini. When case agents testify as experts, they gain "unmerited credibility when testifying about factual matters from first hand knowledge." Dukagjini, 326 F. 3rd at 53. The testimony loses its expert character and the entire process transforms into "the grand jury practice, improper at trial, of a single agent simply summarizing an investigation by others that is not part of the record."Id. at 54. Alicea's factual testimony about matters that required no specialized knowledge clearly implicates these concerns, and the district court erred in allowing him to testify beyond the bounds for which expert testimony would have assisted the jury in understanding the evidence.

The court went on to note that an expert may not simply transmit hearsay to a jury. But that when an expert is no longer applying his extensive expert experience in a reliable methodology, in Daubert v. Merrell Dow Pharms., Inc, 509 U.S. 579 (1993),Daubert teaches that the testimony should be excluded. What is required of an expert is to form his own opinions by "applying his extensive experience and a reliable methodology." In Mejia the proposed expert witness could not separate the sources of information, stating that his testimony was based on "a combination of both" custodial interrogations and other sources. On cross, the agent admitted that hearsay was the source of much of the information.

The court in Mejia also noted that some of the agent's testimony violated the provisions of Crawford v. Washington, 541 U.S. 36 in which the Supreme Court held that the confrontation clause of the Sixth Amendment prohibits the introduction into evidence of the out of court testimonial statements made by an absent witness unless the witness is unavailable and the defendant had a prior opportunity to cross examine. The court in Meija went on to state at 198:

When faced with the intersection of the Crawford rule and officer experts, we have determined that an officer expert's testimony violates Crawford "if [the expert] communicated out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion." Lombardozzi, 491 F. 3d at 72. As with a Rule 703 challenge to the expert's reliance on hearsay, the question under Crawford is whether the expert "applied his expertise to those statements but did not directly convey the substance of the statements to the jury," Id. at 73. In fact when the inadmissible hearsay at issue is a testimonial statement, the Supreme Court has recognized that Rule 703 hearsay claims and Sixth Amendment Crawford claims "are generally designed to protect similar values." Dukagjini, 326 F. 3d at 56, n. 6.

Finally, counsel should take into consideration the Eleventh Circuit case of City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F. 3rd 548 (11th Cir.1998). The Court there noted that a hearing outside the presence of the jury as to the appropriateness of an expert is appropriate.

At footnote 21, the court states:

It is apparent that this problem, along with many others that we identify in this part of the opinion, might have been avoided had the district court simply held a Daubert hearing to allow the parties to clarify their positions, as well as the law, regarding the admissibility of these experts' testimony. While Daubert hearings are not required by law or by rules of procedure, they are almost always fruitful uses of the court's time and resources in complicated cases involving multiple expert witnesses, such as the instant case.

The use of experts by the government is increasing and counsel should take steps to avoid the problems noted in the above cases.