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Third Circuit Approves on Appeal Prosecutors’ Use of Extensive Overview Testimony at the Beginning of Trials

One of the more challenging – and frustrating – aspects of defending white-collar criminal trials is prosecutors’ use of “summary witnesses” at the end of their case in chief. Summary witnesses are normally government agents who worked on the investigation and whose testimony prosecutors use to connect the dots of their case and to convey the big picture of their theory to the jury. Courts routinely overrule defense objections to such summary testimony even though it primarily recounts evidence already presented to the jury.

A more recent – and even more frustrating – development has been prosecutors’ increased use of “overview witnesses” at the beginning of their case in chief. Like summary witnesses, overview witnesses are usually government agents familiar with the investigation whose testimony prosecutors use to summarize their case and theory, but their testimony precedes the presentation of any evidence to the jury.

Two days ago, the Third Circuit addressed the prosecution’s use of overview testimony for the first time in a precedential opinion and joined other circuits that have endorsed such testimony so long as it does not cross certain lines. In United States v. Lacerda, ___ F.3d ___, 2020 WL 2121456 (3d Cir. May 5, 2020), three defendants were convicted of defrauding their customers, who were victims of timeshare fraud whom the defendants had promised to get out of their timeshare debts. Id. at *1. The government’s first witness at trial was an FBI agent who provided an extensive overview of his investigation in testimony that lasted three days. Id. at *3. The defendants were convicted and sentenced to terms of 27 years, 18 years and 3½ years. Id.

On appeal, the defendants’ primary argument challenged the district court’s allowance of the agent’s extensive overview testimony at the beginning of the trial. The panel acknowledged that overview testimony presents potential problems that are foreign to summary testimony. For one, “[b]ecause witnesses can change their stories and objections may be sustained, some of the [anticipated] testimony relied on during the initial overview may never materialize at trial.” Id. at *4. For another, “[b]ecause overview testimony is the first testimony offered, no witness’s credibility has yet been attacked,” thereby precluding any overview testimony which purports to “[v]ouch for a witness who has not yet testified ….” Id. And for a third, “[i]f overview testimony previews the answers of an anticipated witness” who “later fails to testify,” such testimony “may violate confrontation rights,” and “such a violation is not easily cured ….” Id.

To guard against such potential problems, the panel “join[ed] our sister circuits and now hold that overview testimony that opines on ultimate issues of guilt, makes assertions of fact outside of the officer’s personal knowledge, or delves into aspects of the investigation in which he did not participate is inadmissible.” Id. However, the panel permitted overview testimony from “an officer who is familiar with an investigation or was personally involved” which “tell[s] the story of the investigation – how the investigation began, who was involved, and what techniques were used.” Id. More ominously, the panel also permitted such an overview witness, “with proper foundation,” to “offer lay opinion testimony and testify about matters within his personal knowledge.” Id.

Applying those standards, the panel upheld the agent’s extensive overview testimony, rejecting the defendants’ challenges to its three-day length, its references to their customers as “victims,” its assertion that one defendant used an alias, and other objectionable aspects. Id. at **5-6. The panel summarized its holding as follows:

  • In sum, the government may call as its first witness an officer who is familiar with, or was personally involved in, the criminal investigation, and that officer may testify about all matters within his personal knowledge from the investigation. [Here, the agent’s] testimony was largely confined to telling the story of his investigation: how it began, the steps he took, the evidence he uncovered, and the interviews with defendants he conducted. The District Court did not abuse its discretion by allowing this testimony. Id. at *6.

Armed with this new precedent, prosecutors will undoubtedly seek to make increased use of overview testimony at the beginning of their direct cases, especially in complex white-collar trials. Defense counsel needs to be aware of the limitations imposed on overview testimony and to pursue proactive measures, such as in limine motions and limiting instructions, designed to minimize its scope and effect.

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