101 Iowa L. Rev. 683 (2016)

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Abstract

This Article focuses on the current practice in federal court of admitting otherwise inadmissible evidence in order to help the prosecution convey to the jury the investigation narrative. Through this narrative, prosecutors seek to introduce evidence to explain to the jury the course of the criminal investigation, the motives of the law enforcement agents, and their perspective on how to interpret the evidence. The courts improperly treat the development of this narrative as a legitimate prosecution goal at trial. Allowing the prosecution to pursue these goals, courts improperly admit several categories of evidence: out of court statements about the defendant’s criminal conduct that do not fall within any hearsay exception; overview testimony that paints a comprehensive picture of the prosecution’s case; opinion testimony that instructs the jury how to view evidence with the eye of the investigator; and profile testimony that invokes the lessons law enforcement claims to have learned from other cases to explain the criminal nature of the defendant’s conduct. This Article argues that neither the investigation narrative nor these types of evidence play a legitimate role in the trial and that careful application of the rules of evidence would lead courts to exclude the evidence. Only an aggressive campaign to expose and condemn the investigation narrative as an illegitimate focus in a criminal trial will curtail these unfair evidentiary practices.