In a recent post here we commented on the perplexing affirmance in a recent case in which the Third Circuit agreed that a government cooperating witness could speculate in his testimony regarding what a defendant knew or thought in a given conversation about the accuracy of tax returns signed by that defendant. Even if such lay opinion testimony can, like the proverbial round peg, be pounded into the square hole of Fed. R. Evid. 701, it seems obvious that the slight probative value of such mind-reading testimony is substantially outweighed by its enormous prejudice, precluding its admission under Fed. R. Evid. 403. Fundamentally, permitting such testimony by self-interested witnesses invites the jury to ground their decision on unreliable, biased, and nearly unimpeachable testimony.
The Third Circuit has just issued another head-scratching opinion of like nature. The case of United States v. Christie, 2010 WL 4026817 (3d Cir., Sept. 15, 2010) was a child pornography case in which the defendant was one of a large number of persons charged through their connection to the same pornography-distribution website. At trial defense counsel cross-examined the FBI case agent about the government’s arrangement with the cooperating website administrator. Counsel sought to show that the FBI failed to follow its confidential informant guidelines and was misled by an unreliable witness.
On redirect examination of the agent, the prosecutor was permitted to validate the reliability of the overall investigation by asking the FBI agent to “relay [sic] the circumstances of the investigation that would address concerns” raised by defense counsel about the implication of innocent persons. Overruling an objection that the agent lacked personal knowledge (but facing no Rule 403 objection), the court permitted the agent to testify that the FBI had executed 30 search warrants all across the country and had in the process obtained confessions from 24 individuals as to child pornography charges.
The court of appeals easily batted away the personal-knowledge objection made at trial, since the same agent had oversight for all thirty investigations. Other objections to the agent’s testimony were raised for the first time on appeal, and thus were subject to the more onerous plain error standard. The Third Circuit found none had merit: the testimony was not hearsay, since it was not the truth of others’ confessions which was relevant, only the fact that others had confessed, which bolstered the credibility of the web administrator and “illustrated the reliability of the investigation”; and it was not improper vouching, since information about the government’s track record had not come from the argument of a prosecutor but the testimony of a witness. There was no explicit discussion in the opinion of the probative versus prejudicial balance of Rule 403.
Applied to the fullest degree, Christie stands for the remarkable proposition that any time counsel representing one defendant who is part of a sweep challenges in opening statement or cross-examination the bona fides of the government’s investigation or the reliability of its informants, the government is free to respond with a litany of its successes in other similar matters. Nothing in Christie, for example, prevents the government from redirecting an agent-witness, who has been cross-examined on the lack of credibility of her informant, to tell the jury about how many convictions have been obtained in cases where the same informant’s information has been the basis for a search warrant or a lead to a defendant. The trial jury is no longer moored to the evidence presented in the courtroom in which it sits, but is encouraged to consider the government’s batting average in related cases.