Federal Evidence Review

Statements of law enforcement on recording of interrogation of defendant were not all admissible as non-hearsay to explain the context of the defendant’s statements, in United States v. Collins, 575 F.3d 1069 (10th Cir. Aug. 4, 2009) (No. 08-3119)

When recorded conversations are admitted against a party, the party’s statements are admitted as non-hearsay statements of a party, under FRE 801(d)(2)(A). See generally United States v. Gajo, 290 F.3d 922, 930 (7th Cir. 2002) (collecting cases and noting that “[i]t is well settled that [admitting evidence of both sides of a conversation] is appropriate because statements are not hearsay to the extent they are offered for context and not for . . . the truth of the matter asserted” (citations omitted).

The statements of others on the recording normally are admitted for the non-hearsay purpose to supply context to the party’s statements. Without the statements of others, it may be challenging at best to understand the party’s statements. There are limits, however, to admitting the statements of others. A recent Tenth Circuit case explored the contours of the non-hearsay context doctrine.

In the case, three individuals were arrested following explosions at a school and two apartment buildings in Wichita, Kansas. Defendant Collins was interviewed by investigators. Most of his meeting was recorded. Ultimately, the defendant admitted in the recording his involvement with one of the apartments in the case. Defendant Collins was charged with maliciously damaging the apartment buildings by means of an explosive, and knowingly stealing explosive materials that have moved in interstate commerce.

At trial, the court overruled his objections to exclude the two hour and twenty minute audio recording of his interrogation on hearsay and unfair prejudice grounds. Part of the recording included long statements by the officers without asking a question. The court concluded the statements by the officers on the recording supplied context to the defendant’s responses. The court gave the jury a limiting instruction that the officers’ statements were not evidence but offered for context. Another limiting instruction was given before the jury began deliberating. After his conviction, he challenged the admission of the recording.

The Tenth Circuit questioned the admissibility of many of the investigators’ statements:

“We are skeptical of the government’s argument that all of [Wichita Police Department Detective] Hamilton’s and [ATF Special Agent] Heiert’s statements in the recording provide meaningful context for Collins’ statements. Ad hominem attacks, accusations of lying, and general posturing may be standard in police interrogations, but they have little evidentiary value unless the government intended for the jury to believe the truth of those statements. Perhaps more problematically, Hamilton’s and Heiert’s statements in the recording unequivocally corroborated evidence that had just been presented to the jury and vouched for the credibility of individuals who had just testified. Invoking the word ‘context’ does not permit an end-run around the hearsay rules such that the government may smuggle into evidence all interviewer statements. We view such evidence with a particularly jaundiced eye when, as here, the officers’ statements regularly overwhelm the defendant’s.”

Despite expressing these misgivings, the circuit concluded any error was harmless. The evidence of guilt was strong, including eyewitnesses and the defendant’s admission to the offense for which he was convicted.

The Collins case provides a useful example on the limits to admitting the statements of others for non-hearsay context purposes.