First Circuit Notes Standard To Assess Statements Containing Non-Hearsay

First Circuit focuses on relevance tests to assess the admission of out-of-court statements offered for a non-hearsay purpose; ultimately the error was harmless, in United States v. Benitez-Avila, 570 F.3d 364 (1st Cir. June 9, 2009) (No. 08-1463)

One prominent focus of the inquiry into the hearsay nature of a statement is whether the statement is being used as evidence of the truth of the matter asserted by the statement or for some non-hearsay purpose. Under this test, the concept of hearsay is a contextual matter – the same statement may be hearsay in some contexts, but not others.

For example, in Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004), the Seventh Circuit found no error in admitting in a discrimination case a supervisor’s statement that she had been told the plaintiff minority employee had a “toxic effect” at the work place because it was offered not to show that employee actually had that impact (e.g., the truth of the matter asserted), but rather to show the supervisor’s state of mind at the time she was evaluating the employee’s performance. If a statement is being offered not for its truth – for a hearsay purpose – what other evidence concerns arise in determining to admit it? The First Circuit recently set out the tests employed for assessing the admissibility of these non-hearsay statements.

In the Benitez-Avila case, the defendant was convicted of armed robbery of a consular representative of a foreign government. The victim Bolanos went to pick up $8,000 in cash receipts from her husband’s mini-mart gas station. After an investigation, involving the use of photograph identifications, the victim identified the defendant at a physical line up. The victim “immediately identified” the defendant “and became nearly hysterical.” During the trial, the government introduced testimony from agent Emers that the victim’s husband had received a “tip from an informant that the assailant was someone known in the street as ‘Gemelo,’ or the ‘Twin’.” In addition, the court admitted the agent’s testimony that “Defendant was a twin, explaining that he had examined photographs of Defendant and Defendant’s deceased brother which ‘looked exactly alike.’” Benitez-Avila, 570 F.3d at 367. On appeal, the defendant challenged the agent’s testimony as inadmissible hearsay.

The circuit determined that the court erred in admitting the agent’s testimony about the “tip” because it was “twin hearsay.” Benitez-Avila, 570 F.3d at 367-68. The circuit underscored the policy concerns against hearsay testimony under FRE 801:

The principal vice of hearsay is the inability of the opponent of the evidence to cross-examine the person who made the out-of-court statement (the ‘declarant’). The opponent of the evidence is thus unable to get the declarant’s testimony as to whether in fact the declarant said what has been attributed to him, what he meant by it, whether he had a reliable basis for the assertion, and whether he might have been influenced by a bias which undermines his reliability.
Benitez-Avila, 570 F.3d at 368. The circuit concluded that the agent’s testimony about the tip was double hearsay, under FRE 805:
The evidence that the robber was a person known in the street as ‘Twin’ was double hearsay. It demonstrated that the robber was known as ‘Twin’ by a statement made out of court which asserted that fact as true. Agent Emers was testifying to what he had been told by [victim’s husband] Larco, who in turn was relying on something he had been told by an unnamed informant. Defendant had no opportunity to cross-examine Larco on whether he was quoted correctly by Emers, much less to cross-examine the unknown informant to determine whether he said the robber was known as Twin, and if so whether he had a sound basis for saying it.
Benitez-Avila, 570 F.3d at 368.

The circuit rejected the government’s claim that the evidence was admissible because the agent’s statement was “admitted to prove other facts, such as the awareness of the declarant, or of the person to whom the statement was made, of what was said in the statement,” and not to prove the truth of the matter asserted. The circuit noted that when a statement was offered for a non-hearsay purpose, the trial court still had a responsibility. If a statement was offered not for the purpose of proving the truth of what it asserts, the circuit identified two “tests” that the statement must satisfy:

The admissibility of an out-of-court statement to prove some fact other than what was asserted in the statement, however, assumes that the other fact for which the statement is received is relevant to an issue in the trial and, if so, that the potential for prejudice resulting from the likelihood that the jury might consider the statement for its impermissible hearsay purpose does not unfairly outweigh its proper probative value on the other question. Fed. R. Evid. 403.”
Benitez-Avila, 570 F.3d at 368.

The circuit found that “the evidence fails those tests.” The first test of relevance under FRE 401 was failed because “Agent Emers's basis for focusing his investigation on Defendant was not a relevant issue in the trial. The issue in a criminal trial, upon which the government bears the burden of proof, is whether the evidence proves the defendant's guilt beyond a reasonable doubt. Whether government agents had a reasonable, good faith basis for investigating the defendant is a completely different question, which is not in issue unless the defendant puts it in issue…. Emers's good faith was not in issue so that evidence demonstrating his basis for focusing his investigation on Defendant was not relevant.” Benitez-Avila, 570 F.3d at 369.

Similarly, the second test under FRE 403 was not met as well. As explained by the circuit:

The proposition that hearsay does not include statements showing context or background and not received for the truth of what they said should not be understood to mean that any kind of statement, no matter how prejudicial, may be introduced if it shows what might loosely be described as context or background. First, the aspects of ‘context’ or ‘background’ for which the evidence is offered must be relevant. And even if it is relevant its probative value in relation to the nonhearsay purpose must not be "substantially outweighed by the danger of unfair prejudice.”
Benitez-Avila, 570 F.3d at 370 (quoting FRE 403) (emphasis added).

Although the circuit determined that the admission of the hearsay evidence was harmless in light of the overwhelming evidence of guilt that had been properly received, the circuit did issue an implicit warning to the proponent of such evidence. Presentation of this type of evidence was often part of:

an effort to make the evidence of defendants' guilt more lively and to captivate the jurors with the drama of the hunt for the solution to the crime, will often organize the presentation of the evidence of guilt in the form of a narrative of the investigation. We do not suggest that prosecutors are prohibited from organizing the legitimate evidence in a lively, appealing manner. But it does not follow that, by choosing a more seductive narrative structure for the presentation of the evidence of guilt, prosecutors expand the scope of the relevant legitimate evidence, so as to convert prejudicial and otherwise inadmissible evidence into admissible evidence.
Benitez-Avila, 570 F.3d at 369.

Federal Rules of Evidence