Evidence - Hearsay – Evidence Offered by the Defendant

United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014)

Federal and State laws regulate the removal of asbestos from buildings, including OSHA regulations and the Clean Air Act. A company that removes asbestos must comply with various laws regarding the method of removal and a separate “monitoring” company must monitor the air after the removal is accomplished. The defendants in this case (a company and several employees) were involved in monitoring asbestos removal and were charged with not properly monitoring the asbestos removal and submitting false monitoring reports. The defense sought to introduce evidence at trial about certain conversations with officials about their monitoring practices, specifically, whether particular monitoring practices were required if the location was not sufficiently “contained” (i.e., the area where the asbestos was being removed was not fully contained which might result in the monitoring causing more contamination in nearby areas). The government objected that these conversations were hearsay. The trial court’s exclusion of this evidence was reversible error. The evidence relating to the conversations with regulators was not offered to prove the truthfulness of the information provided by the regulators, but to prove that the defendants were acting in good faith when they engaged in certain monitoring practices. The fact that some of the conversations occurred after the criminal conduct did not make the evidence irrelevant, because it was consistent with what the defendants claimed was there long-standing understanding of the monitoring rules.

Alvarez v. Ercole, 763 F.3d 223 (2d Cir. 2014)

The state trial court erred in preventing the defense from cross-examining the lead detective about other investigations that were not pursued. The investigation that was not done was not subject to a hearsay objection, because the issue is not the truthfulness of what was told to a police officer conducting the investigation, but whether there were leads that were not followed. Denying the defense the right to cross-examine the detective violated the Confrontation Clause and was particularly harmful, because the prosecutor arged in closing that the investigation was thorough.

United States v. Leonard-Allen, 739 F.3d 948 (7th Cir. 2013)

During the defendant’s testimony, he was asked why he went to the bank to purchase a CD. His answer was offered to explain his state of mind and to show that he did not have fraudulent intent. The government objected on grounds of hearsay and the trial court sustained the objection. This was reversible error. The evidence was admitted to show the defendant’s state of mind, not to prove the truth of the matter asserted by the person who directed him to purchase the CD. In fact, the defendant would have argued that what he was told was not true, but it explained his state of mind when he purchased the CD. Reversible error.

United States v. Ibisevic, 675 F.3d 342 (4th Cir. 2012)

The defendant carried over $10,000 into an international flight from Dulles Airport heading to Bosnia. An ICE agent who had a Puerto Rican accent questioned the defendant and his mother (the mother spoke no English) about whether they were carrying cash. The defendant responded that they had $5,000.00. During this “questioning” the defendant turned to his mother and translated, “They are asking how much the luggage is worth if it is lost.” The defendant and his mother actually had about $40,000 in the luggage, on their persons and in the mother’s purse. At trial, the defendant claimed that he did not understand the question and that the mother’s testimony (about what the defendant said to the mother) was admissible as a “present sense impression” to show a lack of understanding. The trial court held that this was hearsay and inadmissible. The Fourth Circuit reversed: The defendant’s statement was not hearsay (it was not offered for the truth of the matter asserted; it nevertheless would qualify as a present sense impression; and it was important to his defense regarding his lack of understanding that he was making a false statement or knowingly failing to file a currency form in violation of the law.

United States v. Neadeau, 639 F.3d 453 (8th Cir. 2011)

If a prior statement of a person is offered to prove that the person said something false, it is not hearsay. In this case, the government offered evidence that the defendant’s wife, who was a co-defendant at trial, had previously testified that her husband was not a drug dealer and did not own a Chevrolet Blazer and did not visit the Twin Cicites in 2009. The government offered this evidence to show that the wife was untruthful, not to prove that the defendant did not own the car, or make that trip. (I include this case in this section, because it shows that a party may offer the prior untruthful statements of a person – not necessarily a witness – if the statements are offered to prove that the declarant is a liar).

United States v. Waters, 627 F.3d 345 (9th Cir. 2010)

The defendant was charged with arson in connection with her activities with an environmental “terrorist” group. After she was first contacted by the FBI, she called her cousin and told him that the FBI might contact him and, “I am innocent” and “tell them the truth.” The first statement “I am innocent” is hearsay and the defendant was properly prohibited from introducing that out-of-court statement. But the second statement, urging her cousin to tell the truth, is not hearsay, because there is no assertion of fact that was being offered. That part of her statement was not hearsay and should have been admitted to show the defendant’s lack of guilty mindset.

United States v. Mateos, 623 F.3d 1350 (11th Cir. 2010)

Two defendants were prosecuted for health care fraud in connection with their operation of a clinic. One defendant, a nurse, sought to introduce a surreptitious recording of a conversation between her and other people in the clinic during which the other people sought to assure her that the operation of the clinic was lawful and proper. The tape was not offered to prove that the clinic was operated legally, but to show that she was not a knowing conspirator and that she lacked knowledge of the illegal practices. The trial court erroneously excluded the tape on the basis that it was hearsay. Because the tape was not offered to prove the truth of the matter asserted, admitting it was not barred by the hearsay rules.

Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010)

Relying on Chambers v. Mississippi, 410 U.S. 284 (1973), the Ninth Circuit held that excluding evidence that a witness heard another person confess to the murder with which the defendant was charged was reversible error. If, as in this case, the hearsay evidence is reliable and the declarant is unavailable, excluding the evidence under a state rule of evidence violates the federal Due Process Clause.

United States v. Moran, 493 F.3d 1002 (9th Cir. 2007)

Excluding evidence about what the defendant was told by her attorney and CPA about the legitimacy of the tax shelters was reversible error. Such testimony is not hearsay and cannot be excluded pursuant to Rule 403.

United States v. Hayes, 369 F.3d 564 (D. C. Cir. 2004)

The government introduced a tape that suggested that the defendant was participating in a cover-up. The defendant responded by offering a tape of a conversation shortly thereafter during which he told the person on the phone, “Just tell the truth.” The government persuaded the trial court that this was hearsay. The trial court erred in excluding this testimony. The defendant’s statement was not hearsay, because it was not offered to prove the truth of what he said, but rather to show that he instructed others to tell the truth. Harmless error.

Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004

It is clearly established federal law that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation. Chambers v. Mississippi, 410 U.S. 284 (1973). In this case, two DEA agents were murdered during an undercover deal. During the ensuing arrest of one of the perpetrators, the perpetrator was shot. He made several statements, however, some shortly before being wheeled into surgery and others after he was out of surgery. In each of these statements, he revealed who was involved in the murder. The defendant in this case was not named as a member of the conspiracy. At trial, the witness refused to testify. The defendant sought to introduce the witness’s statements. The Ninth Circuit held that there were sufficient indicia of trustworthiness associated with these statements to support their admission. Excluding this evidence violated the defendant’s due process right to present a defense.

United States v. Parsons, 141 F.3d 386 (1st Cir. 1998)

The defendant was charged with bank fraud in that he used money designated as a construction loan for personal expenditures. At trial, he proffered testimony that he was told by his attorney that the money the defendant used came from a line of credit, not from the construction loan. This was not inadmissible hearsay, because the evidence was not offered to prove that the money was, in fact, from a line of credit, but rather, to prove that the defendant believed it was derived from a line of credit. Harmless error.

United States v. Lis, 120 F.3d 28 (4th Cir. 1997)

The defendant was charged with embezzlement. The government relied in part on a "net worth" theory -- that is, she spent more than she legally earned. She claimed that when her husband died, she discovered cash in a suitcase and also in the suitcase was a document showing calculations in her husband's handwriting. The trial court erred in excluding the document on hearsay grounds. Nothing in the document was being offered for the truth of the matter asserted. Indeed, the only matter asserted in the document was a mathematical calculation (adding numbers). The document was offered to corroborate defendant's claim that she found money in the suitcase, and this was not hearsay. Excluding this evidence was reversible error.

United States v. Detrich, 865 F.2d 17 (2d Cir. 1988)

The defendant was on trial for importing heroin. He sought to introduce the testimony of a witness who would have testified that the defendant had been tricked by an acquaintance in Asia who had convinced him to carry a suitcase back to his brother for the brother’s wedding. The defendant sought to offer this testimony to show that he did not have the intent to import heroin. The statement which the defendant sought to introduce was the brother’s statement that he was, in fact, getting married at the relevant time. The trial court erred in excluding this testimony as it would have corroborated the defendant’s testimony and enhanced his credibility.

United States v. Kohan, 806 F.2d 18 (2d Cir. 1986)

It was reversible error for the trial court to exclude evidence of a conversation between a defendant and a co-defendant which was offered to explain the defendant’s state of mind. The evidence was not submitted to prove the truth of the co-defendant’s statements that the conduct was legitimate, but only to show that statements were made and the defendant believed them to be true, thus suggesting that he did not have bad intent.

United States v. Carter, 801 F.2d 78 (2d Cir. 1986)

In this firearms prosecution, the defendant defended on the basis of entrapment. The government was permitted to introduce a tape of the defendant’s confederate calling up the law enforcement agent and badgering him to come to a meeting and consummate the deal. The tape was admissible as it demonstrated the state of mind of the defendant and his confederate, and disproved the existence of entrapment. The tape was not admitted for the truth of the statements made.

United States v. Cantu, 876 F.2d 1134 (5th Cir. 1989)

In this drug prosecution, the defendant claimed that he was entrapped. He sought to introduce the statements of the informant who urged him to commit the offense, but the Court ruled the evidence inadmissible on hearsay grounds. However, the statements were not being offered for the truth of the matter asserted, but rather to explain the defendant’s conduct. The testimony should have been admitted.

United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986)

A key witness in this civil rights prosecution had been “coached” in preparation of his testimony. The defense attorney sought to play a tape of this coaching but was prohibited by the trial court which held that this constituted inadmissible hearsay. The Sixth Circuit holds that this is incorrect. The tapes were introduced not to prove the truth of the matter asserted – quite the contrary – they were introduced to show that the witness was influenced by this coaching.

United States v. Hanson, 994 F.2d 403 (7th Cir. 1993)

In his trial on charges of filing an incomplete tax return, the defendant sought to introduce evidence of a conversation he had with his superior in which his superior told him that certain information did not have to appear on a conflict of interest form. The statement of his superior was not offered for the truth of the matter asserted, but to show the defendant’s state of mind. Excluding this testimony was error, but harmless.

Rivera v. Director, Department of Corrections, 915 F.2d 280 (7th Cir. 1990)

The defendant was convicted of murder, but at his trial was precluded from introducing the confession of his co-defendant who exculpated him. The co-defendant was tried separately and refused to testify at the defendant’s trial. Following the rule in Chambers v. Mississippi, the Seventh Circuit holds that the exclusion of this evidence denied the defendant due process in light of the vital nature of this hearsay testimony. The defendant was entitled to a new trial.

United States v. Norwood, 798 F.2d 1094 (7th Cir. 1986)

The defendant was on trial for knowingly possessing stolen goods. The defendant offered evidence of what was said to him when another person handed him the credit cards. This evidence was admissible to show the defendant’s state of mind, and his knowledge as to whether the credit cards were stolen. The trial court erred in excluding the testimony, but it was harmless in this case because the defendant was otherwise able to present his theory through other witnesses.