The Third Circuit Opines, for the First Time, About “Overview Testimony”

United States v. Lacerda, ___ F.3d ___ (3d Cir. 2020). This lengthy opinion by Judge Porter affirmed a jury verdict convicting several defendants of mail fraud and wire fraud. Defendants made a number of arguments, none of which persuaded the panel to overturn the convictions or the sentences imposed.

One issue addressed in the opinion, involving “overview testimony,” which is testimony by a witness early in the case to “try to connect the dots and convey the big picture to the jury in complex prosecutions,” similar to summary testimony offered late in a trial, is especially worthy of note. Judge Porter observed that the Third Circuit had not previously “addressed the permissible scope of overview testimony in a precedential opinion.” So his opinion plowed new ground.

The government’s first witness was the lead investigator on the case, who offered “an extensive overview of his investigation” that took several trial days. Defendants attacked that as improper.

Judge Porter noted that overview testimony is less safe than summary testimony. That is because the latter connects evidence already presented at the trial, while some evidence previewed in overview testimony may never be presented, since witnesses may change their stories or objections to testimony may be sustained. For similar reasons, the constitutional right to confront witnesses could be prejudiced if overview testimony addresses contemplated testimony and ‘the expected witness later fails to testify.”

“Vouching” (that is, bolstering the credibility of another witness) can also be a problem with overview testimony. Under Federal Rule of Evidence 608(a), credibility may be vouched for only after it has been attacked. Judge Porter said that “[v]ouching for a witness who has not yet testified would, therefore, be inappropriate.”

Other Circuits have allowed overview testimony, but with limitations. The panel’s opinion joined with those Circuits. “[O]verview 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. But an officer who is familiar with an investigation or was personally involved may tell the story of that investigation– how the investigation began, who was involved, and what techniques were used. In addition, with proper foundation, he may offer lay opinion testimony and testify about matters within his personal knowledge.”

Despite its length, the investigator’s testimony here stayed within the proper parameters. The abuse of discretion standard applied to the District Court’s admission of that testimony, and there was no abuse of discretion. Now everyone in our Circuit knows the rules about overview testimony.