Evidence - Hearsay – Evidence Offered by the Government

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015

United States v. Brooks, 772 F.3d 1161 (9th Cir. 2014)

A postal inspector was permitted to repeat what he was told by the supervisor about the identity of the person who was mailing certain parcels. The fact that the supervisor’s statements were not repeated verbatim is irrelevant. The content of the supervisor’s identification testimony was introduced and the defendant was not able cross-examine the supervisor. “Out of court statements admitted at trial are stateements for the purpose of the Confrontation Clause if, fairly read, they convey to the jury the substance of an out-of-court, testimonial statement of a witness who does not testify at trial.” The statements in this case were testimonial, because the supervisor knew his statements were being used to further an investigation and would be used to collect information necessary to make out a case against the suspect.

United States v. Groysman, 766 F.3d 147 (2d Cir. 2014) The Second Circuit reversed this health care fraud conviction on the basis of several “egregious” evidentiary errors committed at trial. The defendant was charged with conspiring with a company that supplied durable medical equipment to prepare false invoices. The wholesaler was cooperating and taped many of the conversations, though many were inaudible. The government offered testimony from its case agent for several days at the start of trial. The agent (1) offered inadmissible bolstering testimony by testifying that certain transactions occurred, based only on his interviews of the cooperators – he had no personal knowledge to verify that these transactions occurred; (2) offered a summary chart which was not a summary of voluminous evidence, but simply a recitation of what he was supposedly told by the cooperators, thus violating both the hearsay rules and the bolstering rules and the rule governing the admissibility of summary charts; (3) the use of the agent to summarize the case at the outset was improper because it amounted to opinion testimony. The Second Circuit, as noted above, characterized these evidentiary errors as egregious and supported a plain error standard of review reversal.

United States v. Haldar, 751 F.3d 450 (7th Cir. 2014)

In a footnote (footnote 1), the Seventh Circuit cautions that the government should rarely be permitted to introduce “course of investigation” evidence, because of the likelihood that it will prompt the law enforcement officer to testify about inadmissible hearsay evidence that is supposedly not introduced for the truth of the matter asserted.

United States v. Nelson, 725 F.3d 615 (6th Cir. 2013)

An anonymous 9-1-1 caller’s description of a person who was seen in possession of a gun should not have been admitted in evidence, because it was hearsay and was not needed to “explain the police offer’s conduct” in detaining the defendant.

United States v. Demmitt, 706 F.3d 665 (5th Cir. 2013)

The defendant’s co-conspirator pled guilty and during his plea colloquy, a written factual basis was introduced and signed by the co-conspirator. The factual basis stated that the co-conspirator and the defendant conspired to commit the offense. At the defendant’s trial, the co-conspirator testified. He was asked if he signed the factual basis at his plea colloquy and he acknowledged that he did. There was no effort made by the government to establish that the prior signed statement qualified as a prior inconsistent statement. Instead, the government argued simply that the witness, having acknowledged that he signed the statement previously, adopted the statement and it was not, therefore, hearsay. The Fifth Circuit disagreed and held that admitting into evidence the signed factual basis for the truth of the matter asserted was error.

Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011)

The defendant was charged with murder. The key witness for the state testified that he participated in the home invasion with the defendant. That witness was vigorously cross-examined. The prosecution responded by calling the police officer who received a tip from an informant who provided considerable evidence against the defendant, as well as recited what he (the informant) had been told by one of the other participants in the murder. The state argued that this was offered to explain the police officers’ investigation and not for the truth of the matter asserted in the informant’s statement. The Seventh Circuit held that the evidence was not, in fact, offered for this purpose and was inadmissible hearsay that violated the Confrontation Clause.

United States v. Holmes, 620 F.3d 836 (8th Cir. 2010)

The issue in this case was whether the defendant lived at a house where drugs and guns were found during the execution of a search warrant. When cross-examining the police officer, the defense attorney asked whether a certain item of evidence was all there was linking the defendant to the house. On re-direct, the prosecutor asked the officer to read the search warrant affidavit at length, which included the statement of a C.I. who did not testify at trial and who linked the defendant to the house. The Eighth Circuit held that this was error on hearsay and Confrontation Clause grounds. The evidence was not offered to “explain the officer’s conduct” and the defense attorney’s cross-examination did not “open the door” to the rebuttal, or waive the defendant’s Confrontation Clause guarantee.

United States v. Gomez, 617 F.3d 88 (2d Cir. 2010)

The police arrested Rivas. The officer told Rivas to call the person who supplied him with all the ecstasy pills. Rivas called the defendant, Gomez. At trial, the government offered this evidence to support the charge that Gomez was the supplier for Gomez. Rivas did not testify at trial. The Second Circuit reversed the conviction, holding that this was hearsay evidence (by inference) that also amounted to a violation of the Confrontation Clause. Even a limiting instruction by the court to the jury cautioning the jury not to consider the evidence for the truth of the matter asserted was not sufficient to cure the error. See also Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002).

United States v. Kaiser, 609 F.3d 556 (2d Cir. 2010)

The government introduced a hearsay statement and argued that it was not offered for the truth of the matter asserted, but rather to explain the declarant’s state of mind and intent or, altermatively, to show the declarant’s knowledge. Neither of these arguments was sound, however. In addition, even if there were some non-hearsay basis to admit the testimony, the probabitve value was outweighed by its prejudicial effect and pursuant to Rule 403 should have resulted in excluding the evidence. Admitting this testimony was not harmless error.

United States v. Benitez-Avila, 570 F.3d 364 (1st Cir. 2009)

The government offered evidence that the police received a tip that the perpetrator was known as “The Twin.” The government acknowledged that this evidence was hearsay (the defendant, of course, was a twin) but offered the evidence to explain why the police focused on the defendant. The First Circuit rejected this “explaining the officer’s conduct” exception to the hearsay rule. Whether government agents had a reasonable, good faith basisf or investigating the defendant is a completely different question than whether the evidence is sufficient to prove the defendant’s guilt. Only if the defendant puts the agents’ conduct in issue can such hearsay evidence be offered by the government to rebut a claim that the officer acted unreasonably.

Taylor v. Cain, 545 F.3d 327 (5th Cir. 2008)

The state offered testimony from an investigating officer about the investigation he performed including the information provided to him by other witnesses to the murder that implicated the defendant as the perpetrator. This constituted inadmissible hearsay that violated the defendant’s right of Confrontation.

United States v. McGee, 529 F.3d 691 (6th Cir. 2008)

The statements of a confidential informant to a police officer providing information about the defendant qualify as testimonial and, in this case, the officer should not have been permitted to testify about what the informant told him, even as “background” or to “explain the officer’s conduct.” Harmless error.

United States v. Johnson, 529 F.3d 493 (2d Cir. 2008)

The DEA agent’s testimony was replete with improper hearsay, opinion, vouching, and argumentative testimony. The agent testified about the course of the investigation, declaring, “We found out that . . .” and “We determined that . . .” The agent related what co-conspirators told him when they were first arrested, to explain what he did next in the investigation. He then explained what “corroboration” meant and explained what he did and learned to corroborate what he was told by informants and co-conspirators. He further explained that he was skeptical of what informants told him until he corroborated what they said and he was then able to ensure that the informants told him the truth. While it may be more interesting to a jury to learn how the police conduct investigations, a substantial amount of this testimony was inadmissible. Because defense counsel did not object, the plain error standard applied and the Second Circuit held that the inadmissible evidence did not meet this standard.

United States v. Hearn, 500 F.3d 479 (6th Cir. 2007)

Permitting the government to introduce considerable hearsay evidence to “explain the officer’s conduct” in keeping the defendant under surveillance, violated the rule against hearsay as well as the defendant’s Confrontation Clause rights.

United States v. Powers, 500 F.3d 500 (6th Cir 2007)

The trial court erred when it permitted the prosecution to elicit evidence about what the confidential informant told the police. The evidence implicated the defendant was not necessary to provide background, or to explain the officers’ conduct. Harmless error.

United States v. Maher, 454 F.3d 13 (1st Cir. 2006)

The fact that the government offers an informant’s statements to the police “to explain the officer’s conduct” does not eliminate a Confrontation Clause problem. If the point of the inquiry is simply to explain what the officer did, then the officer should simply be asked, “Based on information received did you . . .” Because the defense did not object in this case, however, the error was only reviewed for plain error and was not sufficiently prejudicial to require setting aside the judgment.

United States v. Arbolaez, 450 F.3d 1283 (11th Cir. 2006) An officer may not testify about facts that he learned that prompted his efforts to obtain a search warrant. This is hearsay and is not admissible under the theory that it explains the officer’s conduct. Even a cautionary instruction does not render the evidence admissible. Harmless error.

United States v. Baker, 432 F.3d 1189 (11th Cir. 2005)

The trial court erred in permitting an agent to testify about facts he learned from non-testifying people. The government’s suggestion that the testimony was admissible to explain the officer’s conduct was not a sufficient basis for violating the rules against hearsay.

United States v. Pugh, 405 F.3d 390 (6th Cir. 2005)

Introducing the out-of-court identification statement of a witness that fingered the defendants as the bank robbery (based on the declarant’s viewing of a surveillance tape) violated Crawford. The statement was given by the declarant to a police investigator (thus it was “testimonial”) and the statement was offered for the truth of the matter asserted – not, as the government suggested, merely to explain the officer’s conduct.

United States v. Cromer, 389 F.3d 662 (6th Cir. 2004)

During the defendant’s cross-examination of a police officer, he asked questions about a CI’s description that linked him to drug dealing. On re-direct, the government was permitted to pursue this line of questioning by asking about the specific statements made to the police by the CI. The trial court admitted the hearsay on the basis that the defendant “opened the door.” The Sixth Circuit disagreed. While as a matter of evidence law, the defendant may have opened the door, as a matter of constitutional law, he did not forfeit his rights under the Confrontation Clause. The admission of the CI’s statement to the police was a clear violation of Crawford. The cross-examination of the police officer amounted to foolish trial strategy, not misconduct that would forfeit the Confrontation Clause rights. Moreover, the government elicited other hearsay from the officer when he was asked about the basis for obtaining a search warrant.

United States v. Silva, 380 F.3d 1018 (7th Cir. 2004)

On more than occasion during the course of the trial, the government offered evidence that was clearly hearsay (including what informant’s told the police and the results of drug tests by crime labs) under the theory that the testimony was offered to explain the officers’ conduct, not for the truth of the matter asserted in the out of court statement. The Seventh Circuit reversed. The evidence was compounded by the prosecutor’s closing argument during which he relied on the hearsay evidence to show that the defendant was guilty.

United States v. Williams, 358 F.3d 956 (D. C. Cir. 2004)

The trial court erred in permitting a police officer to testify that he apprehended the defendant based on the report of a non-testifying complaining witness. Explaining the officer’s conduct was not necessary; therefore the non-hearsay purpose of offering this evidence was overshadowed by the prejudicial effect.

United States v. Chapman, 345 F.3d 630 (8th Cir. 2003)

A missing witness previously assisted the police in catching one of his drug customers. His statements did not qualify under Rule 804(b)(3). The witness, “by casting himself as a mere mule and serving up the repeat buyer, could reasonably assume that he would be minimizing his criminal liability.” Therefore, the statement was not sufficiently against his penal interest to satisfy the Confrontation Clause. The court also rejected the government’s theory that the statements were admissible to explain the officers’ conduct in pursuing the buyer (defendant).

United States v. Lopez, 340 F.3d 169 (3rd Cir. 2003)

Prison officials searched the defendant’s cell and found drugs. During trial, two guards were asked why they conducted the search and they responded, over objection, “Because we received information that the defendant might be carrying drugs on his person in his cell.” This was inadmissible hearsay that necessitated reversing the conviction.

United States v. Marsh, 144 F.3d 1229 (9th Cir. 1998)

The defendants operated a tax shelter scheme that invited people to “untax themselves” by various schemes (none of which, of course, actually untaxed anybody). Many people wrote letters to the defendants, complaining that the scheme did not work. At the defendants’ trial, these letters were read to the jury. The government was also permitted to read newspaper editorials into the record (the articles were found in the defendants’ property) that decried the fraud perpetrated by tax protestors. The government claimed that this evidence was admissible to prove the defendants’ state of mind. However, the jury was not instructed that the letters could not be considered for the truth of the matter asserted.

United States v. Johnston, 127 F.3d 380 (5th Cir. 1997)

The government improperly asked a series of questions to various law enforcement officers that elicited hearsay responses. For example, one officer was asked what he did after speaking with another law enforcement officer and the witness responded that he re-focused his testimony on the defendant. This testimony was improper hearsay and should not have been admitted "to explain the officer's conduct." Eliciting such testimony over and over again amounted to prosecutorial misconduct.

United States v. Lovelace, 123 F.3d 650 (7th Cir. 1997)

The police went to a particular location after receiving a tip that the defendant would be there engaged in a cocaine transaction. The defendant was arrested at another location. There was no necessity for introducing evidence of the tip at trial. The defense did not question the police tactics (thereby prompting the government to show that the police were acting on a tip) and there was no other reason that the tip was relevant. Even with a limiting instruction, the admission of this evidence was erroneous. But it was harmless error.

United States v. Williams, 133 F.3d 1048 (7th Cir. 1998)

After a bank robbery, a confidential informant identified the defendants as the perpetrators. A photo line-up was prepared and the teller identified the defendant as the perpetrator. At trial, the confidential informant's identification was admitted in evidence to explain the background of the photo line-up. This was inadmissible hearsay and was reversible error.

United States v. Cass, 127 F.3d 1218 (10th Cir. 1997)

The defendant was charged with falsely claiming that she had been kidnapped. At trial, the case agent was permitted to testify about the various witness statements made to him during the course of investigation. The government argued that the out-of-court declarations were not offered to prove the truth of the matter asserted, but to explain the course of the investigation (in response, in part, to the defendant's opening statement which stressed the inadequacies of the investigation). The Tenth Circuit held that this hearsay evidence was inadmissible. Harmless error.

United States v. Mazza, 792 F.2d 1210 (1st Cir. 1986)

Police officers were permitted to testify about what their informant told them about the defendant’s narcotics activities. The district court allowed the evidence on the theory that the informant’s statements explained the subsequent conduct of the law enforcement agents. The First Circuit holds that this is error, albeit harmless in this case. The probative value of this evidence was far outweighed by the risk that the jury would consider the words of the informant for their truth, not as an explanation of the agent’s conduct. Furthermore, coming from the mouth of an agent, the information was more credible than had it come from an informant.

United States v. Rivera, 61 F.3d 131 (2d Cir. 1995)

The defendant’s co-conspirator entered a guilty plea with an attached stipulated statement of a factual basis, which included incriminating evidence about the defendant. At defendant’s trial, when the co-conspirator testified for the government, the defense counsel cross-examined the witness and referred to his cooperation agreement and the benefits he obtained by cooperating. The government then introduced the entire plea agreement, with the attached stipulated statement of facts. This was inadmissible hearsay and should not have been admitted under the doctrine of completeness, Fed.R.Evid. 106.

United States v. Forrester, 60 F.3d 52 (2d Cir. 1995)

An officer testified that the reason he went to a hotel was “narcotics-related” and when asked by the prosecutor, added that a witness had led him to this conclusion. This was inadmissible hearsay. The officer’s motivation for going to the hotel was not a relevant issue in the case. On another issue, an officer was asked why he had not included the defendant’s name in a report which detailed a cooperating witness’s statement. The officer responded that he already knew about the defendant, so there was no need to include this information. The government then asked the agent how he “already knew” about the defendant. The agent then detailed the hearsay statements of other participants. Although this evidence was technically not offered for the truth of the matter asserted (it was offered to explain why the name of the defendant did not appear in the report), it should have been excluded under Rule 403. The probative value of the evidence (in its non-hearsay context) was outweighed by the prejudicial impact the evidence would have.

United States v. Reyes, 18 F.3d 65 (2d Cir. 1994)

In order to amount to hearsay, the witness does not have to repeat verbatim what was told to him by the out-of-court declarant. Thus, a question such as, “Did your conversation with that person further confirm your suspicion that somebody else was involved in the criminal activity?” if answered affirmatively, amounts to hearsay. In this case, the prosecutor asked numerous such questions, and then explained that the government was only trying to establish the witness’ reasons for further investigation, rather than trying to establish the truth of the matter asserted by the declarant. While this was technically correct, the likelihood was sufficiently high that the jury would not follow the limiting instructions, but would treat the evidence as proof of the truth of the declaration. Thus, the evidence was inadmissible hearsay. In evaluating offers of evidence “to explain the conduct of the witness” (law enforcement agent), the following questions should be considered: (1) Does the background or state of mind evidence contribute to the proof of the defendant’s guilt? (2) If so, how important is it to the jury’s understanding of the issues? (3) Can the needed explanation of background or state of mind be adequately communicated by other less prejudicial evidence or by instructions? (4) Has the defendant engaged in a tactic that justifiably opens the door to such evidence to avoid prejudice to the government? In evaluating the potential prejudice, these questions should be considered: (a) Does the declaration address an important disputed issue in the trial? (b) Is the same information shown by other uncontested evidence? (c) Was the statement made by a knowledgeable declarant so that it is likely to be credited by the jury? (d) Will the declarant testify at trial, thus rendering him available for cross-examination? (e) If so, will he testify to the same effect as the out-of-court statement? (f) Is the out-of-court statement admissible in any event as a prior consistent, or inconsistent, statement? (g) Can curative or limiting instructions effectively protect against misuse or prejudice? In this case, virtually every one of these questions was answered by the appellate court in favor of excluding the evidence. Even a limiting instruction was presumed to be insufficient to deal with the potency of the evidence, and the conviction was therefore reversed.

United States v. Tussa, 816 F.2d 58 (2d Cir. 1987)

An FBI agent was permitted to testify that an unidentified informant had told him that he had seen the defendant leaving a building with a bag under his coat shortly before the heroin was delivered at another site. The admission of the statement was harmful error with respect to two defendants, the one who delivered the bag, and the one who acted as the middle man.

United States v. Sallins, 993 F.2d 344 (3rd Cir. 1993)

The government offered evidence of the content of a 911 tape into evidence to put the police officer’s conduct “in context.” This was inadmissible hearsay and necessitated a new trial. The government’s argument that the content of the tape was only offered to explain the officers’ conduct did not provide an exception to the hearsay rule: the officers’ conduct was not material.

United States v. Pelullo, 964 F.2d 193 (3rd Cir. 1992)

The government introduced bank wire transfer records for the truth of the matter asserted – that is, to show the movement of money from the bank to the corporation and then diverted to the defendant. The records were not admissible as a business record, because no custodian identified the documents or established the foundation for the admissibility on this theory. No other exception could be used to authorize the admission of the documents. This was reversible error.

Monachelli v. Warden, 884 F.2d 749 (3rd Cir. 1989)

The out-of-court statements of a co-defendant should not have been admitted at the defendant’s trial.

United States v. Hall, 989 F.2d 711 (4th Cir. 1993)

Defendant’s wife made statements to an investigator which implicated the defendant in drug dealing. Prior to trial, however, the wife asserted her marital privilege and refused to testify. The prosecutor, in cross-examining the defendant made repeated references to the wife’s statement, even announcing to the jury that his questions were based on the wife’s three-page statement. Aside from violating the marital privilege, this amounted to the improper introduction of hearsay. Even a curative instruction, directing the jury to disregard the alleged statements of the wife, did not cure this error.

United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987)

A videotaped deposition of two government witnesses who were in prison in Mexico was used at trial despite the fact that the witnesses were released from Mexico within days of their signing of the deposition. They were available for trial and the admission of the deposition constituted reversible error.

United States v. Arroyo, 805 F.2d 589 (5th Cir. 1986)

Inadmissible hearsay of a co-conspirator was admitted at trial. It was impossible to carve out and surgically isolate those portions of the indictment and subsequent verdict which were tainted by this testimony and consequently the conviction was reversed.

United States v. Hathaway, 798 F.2d 902 (6th Cir. 1986)

In a fraud prosecution, false statements are never hearsay. As a general rule, a statement offered to prove its falsity is never hearsay under Rule 801(c).

Gaines v. Thieret, 846 F.2d 402 (7th Cir. 1988)

Prior to a police officer testifying about the defendant’s statements about the crime, the State sought to introduce evidence that the defendant’s brother had made statements to the police officer incriminating the defendant. This admission of hearsay constituted reversible error in this death penalty case.

United States v. Montoya, 827 F.2d 143 (7th Cir. 1987)

The DEA agent’s testimony concerning the statement by a drug courier suspect implicating the defendant in a cocaine smuggling operation was inadmissible hearsay.

United States v. Blake, 107 F.3d 651 (8th Cir. 1997)

The trial court erred in permitting the government to offer hearsay statements of a confidential informant that the defendant was a drug dealer for the supposed limited purpose of explaining why the police began their investigation. There was no relevance to why the police began their investigation, so such testimony had no legitimate basis, other than to establish through hearsay that the defendant was a drug dealer.

United States v. Benson, 961 F.2d 707 (8th Cir. 1992)

Though the error was harmless, the prosecutor should not have read to the jury a statement of the defendant in an FBI case agent report. The report was hearsay and did not qualify under any exception to the hearsay rule.

Webb v. Lewis, 44 F.3d 1387 (9th Cir. 1994)

The state offered the hearsay statements of a child abuse victim which had been made to a social worker on videotape under the state version of Rule 803(4). This was clearly erroneous, however. The social worker was not a doctor and nothing about her relationship to the child reflected a medical relationship. The social worker’s function was to investigate the charges of sexual abuse which had been made against the defendant. The child in no way was seeking medical attention. The videotaped statement was also inadmissible under the residual exception to the hearsay rule. There were inconsistencies in her statements and a lack of spontaneity which indicated that she had been coached by other people prior to the videotaped statement. See Idaho v. Wright, 110 S.Ct. 3139 (1990).

United States v. Dean, 980 F.2d 1286 (9th Cir. 1992)

Defendant was tried on weapons possession charges. Over objection from the defense, a police officer testified that he was told by another person that the defendant had fired a weapon in his presence. The government argued that this hearsay was admissible to show why the police went to the defendant’s house. While it is true that the hearsay statement did explain the officer’s conduct, the officer’s conduct was not relevant to any issue in the case. Because the defendant’s possession of the weapon was disputed, this was reversible error.

United States v. Tafollo-Cardenas, 897 F.2d 976 (9th Cir. 1990)

The government offered the testimony of a witness who recanted her prior statement which implicated the defendant. The government convinced the trial court to admit the prior statement as substantive evidence. The evidence was not admissible as substantive evidence; because the trial court did not instruct the jury that the prior statement was only admissible for impeachment purposes, the conviction was reversed.

United States v. Scrima, 819 F.2d 996 (11th Cir. 1987)

The defendant’s accountant’s testimony as to the defendant’s reference to an undisclosed cash hoard was inadmissible hearsay in a prosecution for income tax evasion.

United States v. Eccleston, 961 F.2d 955 (D.C.Cir. 1992)

An officer was repeatedly asked, “What else did your investigation reveal?’ He responded with the likes of, “They told me they were going to [the defendant’s house] to buy crack cocaine.” This was clearly inadmissible hearsay – “they” were not co-conspirators and knew they were being interviewed by a police officer – and required reversal of defendant’s conviction.