More on groundwork.

Earlier I commented on prosecutors introducing inadmissible irrelevant evidence to set the stage or lay the groundwork for an investigation and prosecution (here). Here’s another case, again from the 1st Circuit.

This case requires us to assess the propriety of the government’s use of a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an “overview” of the prosecution’s case. While we have condemned aspects of this practice before, most notably in United States v. Casas, 356 F.3d 104, 117 (1st Cir. 2004), we must regrettably revisit the overview witness issue in some detail because of the abuse of that practice in this case and others.

United States v. Flores-De-Jesus, No. Nos. 06-2670, 06-2671, 06-2672, 2009 U.S. App. LEXIS 13093, at *1 (1st Cir. Jun. 18, 2009).

Casas identified three characteristics of overview testimony that make it “inherently problematic.” Id. First, “such testimony raises the very real specter that the jury verdict could be influenced by statements of fact or credibility assessments . . . not in evidence.” Id. Second, “there is . . . the possibility that later testimony might be different than what the overview witness assumed.” Id. at 119-20. Finally, “[o]verview testimony by government agents is especially problematic because juries may place greater weight on evidence perceived to have the imprimatur of the government.” Id. at 120.

The court in Casas notes that,

At least one other court, the Fifth Circuit, has condemned such “overview” testimony by a government agent presented at the outset of a trial. United States v. Griffin, 324 F.3d 330, 349 (5th Cir. 2003). The prosecution in that case called as its second witness an FBI agent, who testified broadly about the defendant’s role in a tax-fraud conspiracy. The testimony was based on the accounts of several witnesses that the government presented later in the trial. In holding it was error to admit this preliminary overview testimony, the Fifth Circuit said that “we unequivocally condemn this practice as a tool used by the government to paint a picture of guilt before the evidence has been introduced.” Id.

United States v. Casas, 356 F.3d 104, 119 (1st Cir. 2004).