Considering Statement Was Made, Not What Was Said, As Non-Hearsay

During cross-examination, testimony that a witness had obtained information from others, without revealing the content of the information, did not violate the Confrontation Clause or rule against hearsay under FRE 801(c); the statement was offered to show that it had been made or had an effect on the hearer, in United States v. Macias-Farias, _ F.3d _ (6th Cir. Feb. 8, 2013) (No. 11-6241)

Statements that one witness spoke with another do not implicate the bar against hearsay statements until what was said is considered. Even then, if offered for a non-hearsay purpose, the out of court statement may be admissible. See, e.g., Statement About Conduct Was Not Hearsay Since The Statement Was Offered For The Effect On The Listener. The Sixth Circuit recently considered a comparable issue.

In the case, defendant Macias-Farias was prosecuted for conspiring to distribute more than 1,000 kilograms of marijuana. During cross-examination, defense counsel questioned an agent about the credibility of a confidential information since he failed to provide correct location information about a drug transaction. Defense counsel asked about the basis of the information about a drug transaction on February 18th:
Q. So again, the only information you have regarding that February 18th deal to relate Mr. Macias to it is Sean’s words?

A. No, sir.

Q. Okay. And the minivan, you say?

A. No.

Q. More?

A. Yes.

Q. What is more?

A. Amber Babor for one.

Q. Well, Amber Babor is not here, right?

A. You asked who else could provide information about that, and she did.

Q. Oh, she did provide you information on that?

A. Yes.

Q. Okay. Did you write a report about it?

A. Yes, I did.

Q. You did?

A. Yes, I did.
Macias-Farias, _ F.3d at _.

The trial court granted the defense request for the production of the report. Defense counsel later moved for a mistrial claiming the agent’s testimony about information he received from others violated the Confrontation Clause. The motion for a mistrial was denied, but the trial court gave a limiting instruction to the jury: “You cannot consider references by witnesses to the alleged statements of Amber Bab[o]r because she did not testify.” Macias-Farias, _ F.3d at _. Following his conviction, on appeal the defendant claimed the agent’s testimony violated the Confrontation Clause and included inadmissible hearsay.

The Eighth Circuit found no violation of the Confrontation Clause or hearsay rule. As the circuit explained, the content of the statement was not mentioned, only the fact that information had been obtained:
But, in this case, Agent Moore testified only that he had obtained information from Amber Babor. He did not repeat the information itself, which might well have amounted to hearsay testimony if it had been offered to establish the truth of the statement by the declarant, Babor. See Fed. R. Evid. 801(c); see also United States v. Childs, 539 F.3d 552, 559 (6th Cir. 2008) (defining hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). Although the jury could have inferred that Babor’s information corroborated Lacefield’s account of the events of February 18, it is unclear from the record what portion of Lacefield’s information she corroborated, much less what she actually told Moore. As we have noted, “[t]he hearsay rule does not apply to statements offered merely to show that they were made or had some effect on the hearer.” United States v. Martin, 897 F.2d 1368, 1371 (6th Cir. 1990) (citing United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir. 1982)).
Macias-Farias, _ F.3d at _.

The Macias-Farias case helps illustrate the line for hearsay under the Confrontation Clause. The fact that one witness spoke with another does not necessarily show the substance of the “matter asserted,” although an inference may be made. Confirmation that a communication occurred does not reveal the essence or nature of the communication.

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Photo Description: Sixth Circuit Court of Appeals, Potter Stewart U.S. Courthouse, Cincinnati, OH. Learn more about the courthouse which was named after U.S. Supreme Court Justice Potter Stewart who served for twenty-three years on the Court.

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