New York Federal Criminal Practice Blog
June 24, 2008

Second Circuit Assails FBI Agent's Improper Trial Testimony Admitted as “Background” (But Affirms Anyway)

In United States v. Johnson, 2008 WL 2446143 (2d Cir. June 19, 2008), the Second Circuit presents a primer on the questions an AUSA cannot ask their case agent at trial, the questions defense lawyers should object to, and government justifications that don’t hold water.  Grudgingly affirming co-defendant Walker’s conviction (which resulted in a life sentence), despite “large amounts of impermissible matter,” the decision is an invaluable resource to counter the government efforts to sneak improper testimony in under the guise of “background.”

The Second Circuit Blog has some choice words for this decision, so I will focus here on the things agents cannot say, and the fallback arguments prosecutors cannot make.  Forgive the fact that some of these may seem patently obvious.  They weren’t to Walker’s lawyer, who failed to object to a single instance, thus leaving Walker with the plain error standard of review.  Had he objected, the Court indicated that would have tipped the balance in favor of reversal. 

Agent Don’ts

  • Agent cannot repeat hearsay describing defendant’s criminal acts (“we had identified basically three principal higher-level players, Mr. Walker, etc.;” “[cooperating witness told us] that he had obtained the crack cocaine from . . . Ernest Walker, who we were already investigating, having identified him as the supplier of multi-ounce crack quantities;” “[cooperating witness confirmed] that he now got [his crack] from Mr. Walker;” “there was a male . . . involved with . . . Mr. Walker in the distribution of crack cocaine and other criminal endeavors”)


  • Agent cannot vouch for credibility of government witness (“when I’m asked as to how I believe [the witnesses] . . . it’s information from other people, actual physical evidence, and verification through interviewing the people who are involved”)


  • Agent cannot say or even imply that information obtained from investigation “corroborated” other evidence (another cooperating witness “provided[d] information to law enforcement as well,” thus implying that this witness “had confirmed Walker’s involvement in drug dealing”)


  • Agent cannot assert own belief about defendant’s guilt (see above)


  • Agent cannot announce his own assessment of the defendant’s character (“very shrewd, smart, street-smart, calculating . . .”)


  • Agent cannot assure the jury of the reliability of the government’s entire case (I am a Special Agent, who “investigates violations of the federal controlled substance laws,” identifies individuals involved in the drug trade, uses “investigative techniques to obtain evidence” and “then bring that evidence to a court such as this, to hold these people accountable for their illegal actions”)


Government Don’ts

  • Cannot backdoor improper, incriminating hearsay evidence as “background of the investigation.”  Balancing test of Rule 403 dictates that “unimportant issue of investigative background” does not outweigh “substantial prejudice to the defendant on the crucial issue of proof of guilt,” particularly where it may be possible to redact the prejudicial portions.


  • In a related vein, nor can it backdoor hearsay evidence to prove “state of mind of the investigating agents, to help explain their actions.”  The Court held in Johnson: “[t]he agent’s state of mind as the investigation progressed is ordinarily of little or no relevance to the question of the defendant guilt.” 

Defense Lawyer Dos

· Object!

See Archives for all posts since September 2007.