Federal Evidence Review

In drug distribution trial, detective’s testimony about hearing the defendant’s name mentioned by the cooperating witness as the supplier of the drugs during a controlled buy was inadmissible hearsay since it was erroneously offered for its truth that the defendant was a drug supplier and was not necessary to provide “a coherent story about” the investigation of the defendant; while Tenth Circuit warns of “apparently widespread abuse” of the “background exception to the hearsay rule,” the conviction is affirmed since hearsay was not plain error, in United States v. Hinson, 585 F.3d 1328 (10th Cir. Nov. 3, 2009) (No. 08-3086)

It is widely accepted that an out-of-court statement offered not for the truth of the statement, but rather to show its effect on the hearer or reader of the statement, is not hearsay. These statements escape the hearsay rule since it is not being offered to help prove the truth of the matter asserted in the statement. In criminal cases, this type of evidence is occasionally admitted as non-hearsay to explain the background and the actions of law enforcement agents. The Tenth Circuit recently considered a case in which the trial court admitted out-of-court statements proffered by the government in an effort to explain the “context” of the investigation. The circuit concluded that admission of the statement did not affect the trial result and affirmed the conviction. However, the circuit noted that the proffer of the statement in this situation constituted an “abuse” of the widespread practice of allowing a hearsay statement to provide the context to a criminal investigation.

In the case, defendant Hinton came under suspicion when suspected drug dealer Pingry was apprehended. To improve his situation, he confessed to authorities that he had obtained the drug from the defendant and he agreed to assist in a controlled buy of methamphetamine from the defendant. At the defendant’s trial, the prosecution introduced “substantial evidence indicating that Hinson was” a drug supplier, including testimony by Pingry of his prior purchases of drugs from the defendant over the years. There was considerable corroborative evidence of this testimony, including testimony by a detective that “she began investigating the defendant after hearing, from a different confidential informant, that someone with ‘the name of Kevin [Hinson], white male, supplied Mac Pingry with methamphetamine ice.’” Hinson, 585 F.3d at 1332. After his conviction, the defendant appealed contending in part that the court erred by admitting the detective’s testimony about hearing from a confidential informant that the defendant had supplied the dealer with methamphetamine.

Applying a plain error standard because the defendant had failed to object to the evidence at trial, the Tenth Circuit agreed that the statement testified to by the detective was inadmissible hearsay. However admitting this hearsay was not plain error and accordingly the circuit affirmed the conviction.

The circuit noted that it had often found without error the admission of out-of-court statements when offered not for proving the truth of the statements, but rather to provide the context of a criminal situation underlying a case. Hinson, 585 F.3d 1336 (citing United States v. Becker, 230 F.3d 1224, 1228 (10th Cir. 2000) (“Testimony which is not offered to prove the truth of an out-of-court statement, but is offered instead for relevant context or background, is not considered hearsay.”) (emphasis as in original). However, this evidence is problematic when:

“admitting an officer's testimony that an informant had told him the defendant was selling and manufacturing drugs, where that information went ‘to precisely the issue the government was required to prove’ and ‘the government clearly relied on the informant's statements as truthful,’ as evidenced by the government's reference to that information in its closing arguments.. Similarly … this court held that statements ostensibly offered as background were, in fact, inadmissible hearsay because of ‘the extensive admission of [the] out-of-court statements, the fact that [the] evidence went directly to the defendant's guilt, and the [fact that the government used this] evidence to establish the truth of the matters asserted.’”

Hinson, 585 F.3d 1337 (citing United States v. Becker, 230 F.3d 1224, 1229 (10th Cir. 2000); United States v. Cass, 127 F.3d 1218, 1224 (10th Cir. 1997))

The circuit explained that in the defendant’s case the testimony by the detective of hearing the defendant’s name from another drug dealer was entirely unnecessary to explain the context of police investigation of defendant. In part this was because the testimony was not unclear from Pingry’s testimony that the authorities had focused the investigation on Hinson after Pingry told them that the defendant was his supplier. As explained by the circuit:

“Ascertaining the purpose evidence serves, while essential to a determination of whether it constitutes inadmissible hearsay or admissible background information, is not an easy task. One useful clue that courts have looked to is whether the purported background evidence is necessary for the government to be able to tell a coherent story about its investigation. In this case, the ‘background’ evidence offered by Detective Hamilton was entirely unnecessary to explain the context of the police investigation of Hinson. The reason the police focused their investigation on Hinson was perfectly clear: After arresting Pingry, he told the police that Hinson was his supplier. The government offered ample admissible evidence to show that this conversation took place, and Detective Nicholson's testimony that she had heard that someone named “Kevin” was Pingry's supplier was, therefore, completely unnecessary to explain the police's subsequent actions.”

Hinson, 585 F.3d 1337 (citing United States v. Reyes, 18 F.3d 65, 70-72 (2d Cir. 1994) (hearsay evidence ostensibly used to explain the officers' focus on the defendant in that case was inadmissible because “[e]ven if there had been sufficient reason to explain to the jury why the agent investigated [the defendant], that explanation was amply provided” with other, admissible, evidence); United States v. Sallins, 993 F.2d 344, 346-47 (3rd Cir. 1993) (reversing defendant's conviction based on the introduction of inadmissible hearsay evidence-ostensibly admitted as background-of radio call to police in part because the police could have adequately explained their reasons for investigating the defendant without invoking this hearsay evidence)).

If the proffered hearsay evidence appeared unnecessary to explain the context of the investigation, the circuit noted what was needed next was a bit of common sense:

“Where the government introduces evidence that bears on the ultimate issue in a case but that is not necessary to explain the background of a police investigation, the only reasonable conclusion we can reach is that the evidence was offered, not as background, but as support for the government's case against the defendant. … Here too, the only purpose Hamilton's hearsay testimony served was to bolster the government's claim that Hinson was, in fact, Pingry's drug supplier. That purpose is impermissible, and this evidence should not have been admitted.”

Hinson, 585 F.3d 1337 (citing United States v. Sallins, 993 F.2d 344, 347 (3rd Cir. 1993) (“The absence of a tenable non-hearsay purpose for offering the [hearsay evidence] establishes that the evidence could have been offered only for its truth value.”)).

Because the defendant did not object during the trial to the testimony he now challenged on appeal, the circuit applied a plain error analysis for whether the error affected his substantial rights. This inquiry involved assessing whether the error affected the outcome of his trial. The circuit concluded that the error was not plain error because of other evidence at trial, such as testimony by Pingry that the defendant was his supplier. In addition, evidence obtained during the controlled buy tended to corroborate the hearsay that was admitted.

The circuit did not stop with its affirmation of the defendant’s conviction. It warned that the detective’s testimony about hearing the defendant’s name mentioned by another dealer should not have “been offered by the prosecution. The circuit had previously criticized the

‘“apparently widespread abuse’” of the background exception to the hearsay rule…. We do not suggest that the problem is any more pronounced in the Kansas U.S. Attorney's Office than elsewhere, but we wish to remind all U.S. Attorney's Offices that, the Supreme Court stated more than seventy years ago, the U.S. Attorney ‘is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’”

Hinson, 585 F.3d 1338 (citing Berger v. United States, 295 U.S. 78, 88 (1935))

Other circuits have found background information, like that involved in Hinson to be problematic, for example:

• United States v. Silva, 380 F.3d 1018, 1019-20 (7th Cir. 2004) (reversing conviction after noting the government’s “far too much use” of statements by an informant and although sometimes relevant if the factfinder “would not otherwise understand why an investigation targeted a particular defendant” and the evidence could provide context and “dispel” a fear that “the officers were officious intermeddlers”; noting as well possible confrontation challenges to admission of this type of evidence because otherwise it “would eviscerate the constitutional right to confront and cross-examine one's accusers”) (reversing).
• United States v.. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006) (agent’s testimony about what he had been told about the defendant “constitute[d] inadmissible hearsay” but circuit found its admission was harmless)
• United States v. Davis, 449 F.3d 842, 847 (8th Cir. 2006) (trial court erred by admitting face page of warrant because it indicated the defendant’s address which was a key issue in the trial, but this error was harmless)

For recent posts on the line between admissible and inadmissible background evidence, see Taxing Use Of Non-Hearsay Background Testimony; Non-Hearsay Background Evidence Concerning Investigation Was Inadmissible; First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony.