Imperative To Tell The Truth Was Not A Hearsay Statement

While the defendant’s request that her cousin should tell the truth if interviewed by the FBI was not hearsay, her statement that she was innocent was “clearly” inadmissible hearsay, in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222)

It is not uncommon for one party to introduce evidence that he told others to tell the truth. The Ninth Circuit recently considered the hearsay implications of these efforts.

In the case, defendant Waters was charged with conspiring with "several radical environmentalists" in torching the office of a professor of horticulture as part of a protest against genetic engineering. In her federal arson trial, the defendant offered her statements to her cousin that the FBI may seek to interview him. The defendant said “she was innocent and that he should tell the FBI the truth.” These statements were excluded by the trial court as inadmissible hearsay. After the defendant was convicted, she appealed the exclusion of the statements to her cousin.

The Ninth Circuit considered the two parts of the statement; one was hearsay the other was not:

The district court’s application of Rule 801(a) was only half correct. The first part of Waters’ statement — that she was innocent — is clearly hearsay, and was therefore properly excluded under Rule 801(a). The second part, however — Waters’ admonition to Corrina that he should 'tell the truth' — does not fall within the definition of hearsay. 'Tell the truth' is an imperative and not an assertion of fact. It therefore does not fall within the meaning of 'statement' in Rule 801(a) and cannot be hearsay, because a nonassertion cannot have been offered to prove the truth of the matter asserted. See United States v. Hayes, 369 F.3d 564, 568 (D.C. Cir. 2004) ('The imperative "tell the truth" does not expressly assert anything.')."
Waters, __ F.3d at __.

Normally, for a party to admit exculpatory statements, the party must testify. See Evidence Lesson: A Party Wishing To Offer Its Own Exculpatory Statements Must Testify. However, as noted in Waters, the command to tell the truth may be considered as non-hearsay.

For other evidence issues of note in the Waters case, see Ninth Circuit On Evaluating "Defendant's Choice Of Reading Material" Under FRE 403 and Trial Court's Duty To Make "Adequate Inquiries" About Extrinsic Influences On Jury.

Federal Rules of Evidence
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