Background testimony by police

I have previously noted the First Circuit’s criticism of prosecutors calling police to set the “context” of an investigation.  The view being that’s it’s an attempt to have the police testify to a whole lot of inadmissible evidence and hearsay, and prejudice the members.  The same issue should be avoided and objected to in a court-martial.

Prosecution “overview” witnesses and More on groundwork.

imageAccording to a post at FederalEvidenceBlog, the Tenth Circuit is joining in condemning the “apparently widespread abuse” of “background” testimony.

In drug distribution trial, detective’s testimony about hearing the defendant’s name mentioned by the cooperating witness as the supplier of the drugs during a controlled buy was inadmissible hearsay since it was erroneously offered for its truth that the defendant was a drug supplier and was not necessary to provide “a coherent story about” the investigation of the defendant; while Tenth Circuit warns of “apparently widespread abuse” of the “background exception to the hearsay rule,” the conviction is affirmed since hearsay was not plain error.

United States v. Hinson, __ F.3d __ (10th Cir. Nov. 3, 2009) (No. 08-3086).  The Tenth notes the following circuits have issues with this type of testimony.  Other circuits have found background information, like that involved in Hinson to be problematic, for example:

United States v. Silva, 380 F.3d 1018, 1019-20 (7th Cir. 2004) (reversing conviction after noting the government’s “far too much use” of statements by an informant and although sometimes relevant if the factfinder “would not otherwise understand why an investigation targeted a particular defendant” and the evidence could provide context and “dispel” a fear that “the officers were officious intermeddlers”; noting as well possible confrontation challenges to admission of this type of evidence because otherwise it “would eviscerate the constitutional right to confront and cross-examine one’s accusers”) (reversing).

United States v.. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006) (agent’s testimony about what he had been told about the defendant “constitute[d] inadmissible hearsay” but circuit found its admission was harmless) .

United States v. Davis, 449 F.3d 842, 847 (8th Cir. 2006) (trial court erred by admitting face page of warrant because it indicated the defendant’s address which was a key issue in the trial, but this error was harmless) .