Federal Evidence Review

In drug trial, testimony that hotel clerk saw the defendant drop “a little baggy containing a ‘white substance’” was relevant even without any evidence confirming the nature of the substance, in United States v. Burnett, 579 F.3d 129 (1st Cir. Sept. 1, 2009) (No. 08-1224)

To be admissible, evidence need not be conclusive on a particular issue. Under FRE 401, relevant evidence “means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A recent First Circuit case demonstrates the admissibility of non-conclusive evidence under the relevance standard.

In the case, the police responded to a report that some men with a firearm had made threats and had driven away in a truck. The truck was found in a hotel parking lot. Ultimately, a search warrant was obtained for the hotel room and officers seized a handgun, cash and half a kilo of crack cocaine in 281 baggies. At trial, a hotel clerk testified that she had seen “a little baggy containing a ‘white substance’ fall out of Burnett's pocket when he stepped out of the elevator. Rather than tell Burnett he lost something, [clerk] Benson picked up the baggy and then flushed it down a toilet.” The trial court excluded her testimony about what she suspected was in the baggy; however, she was allowed to respond to the question whether she “was suspicious about what she picked up.” During cross-examination, defense counsel asked why she had not alerted the defendant that he had dropped something. She replied, “I knew it was drugs.” Burnett, 579 F.3d at 132. The jury convicted the defendant. On appeal, he challenged the admission of the clerk’s testimony as irrelevant without any evidence that the substance was cocaine or crack cocaine and the jury was allowed to speculate on this evidence.

The First Circuit affirmed the admission of the testimony. In doing so, the circuit explained the measure for relevant evidence:

“Each specific item of evidence offered need not "be sufficient to prove the case standing by itself" before it is admissible. Rather, it is enough that the piece of evidence has some bearing on a matter of consequence to the case. Juries are asked every day to consider circumstantial evidence as they determine whether a defendant has committed a crime.

“The fact that the substance in the baggy about which the hotel employee testified was not proven to be cocaine may diminish the weight a fact finder will give the evidence, but it did not make the evidence completely without value. This evidence tended to make the existence of the fact that Burnett was involved in a conspiracy to distribute cocaine more probable than if the evidence had not been admitted. Four people were found in a hotel room with over 500 grams of crack cocaine, which was packaged in small baggies and locked in a safe. The prosecution had to establish not only that Burnett was in the room, but that he was involved in the conspiracy to possess and distribute the cocaine. The fact that Burnett was seen in the same hotel with a small baggy containing a white substance, even though that substance was not identified, provides circumstantial evidence which a jury could find corroborated Holland's testimony that Burnett was the one packaging the crack cocaine. See United States v. Searing, 984 F.2d 960, 965-66 (8th Cir. 1993) ("[Defendant]'s bagging of a substance which could have been narcotics was indeed relevant to his knowledge and participation in such an enterprise. The neighbor's inability to definitely identify the substance . . . went to the weight and credibility of her testimony, not its relevance.").

As the Burnett case highlights, ultimately the fact-finder must assign the weight given to any admitted evidence. Merely because the evidence is not definitive on a particular point does not make it inadmissible. Even circumstantial evidence may have some bearing on a matter of consequence in the case.