Sixth Circuit reviews defense effort to admit the defendant's exculpatory statements during cross-examination of a special agent and concludes the statements were properly excluded as hearsay; while inculpatory statements were properly admitted under FRE 801(d)(2)(A), the exculpatory statements were hearsay under FRE 801(c), and were inadmissible under the Confrontation Clause and Rule of Completeness under FRE 106, in United States v. Ford, _ F.3d _ (6th Cir. Aug. 5, 2014) (Nos. 11-2200, 11-1926, 11-1917, 11-2015)
FRE 801(d)(2)(A) provides a that a statement is “not hearsay” when: “The statement is offered against an opposing party” and “was made by the party in an individual or representative capacity.” Often after statements are admitted under the rule against a party, the party may seek to admit exculpatory statements. When this issue arises, questions about the Confrontation Clause, hearsay and the Rule of Completeness under FRE 106 typically are noted. The Sixth Circuit recently considered this issue.
Trial Court Proceedings: Admitting Inculpatory Statements But Excluding Exculpatory Statements
Co-defendants Ford and Perdue were charged with Hobbs Act and firearm counts based on their role in participating in a series of robberies. At trial, the government admitted inculpatory statements of defendant Perdue through the testimony of an FBI agent. According to the agent, defendant Perdue "admitted that he was involved in the Mount Hope robbery, but only as a lookout." During cross-examination of the agent, defense counsel sought to admit exculpatory statements of the defendant. For example, the questions concerned whether the defendant had admitted shooting a clerk and had identified himself in a photograph. Each time the trial court excluded the statements as inadmissible hearsay. After his conviction, the defendant claimed the exclusion of the exculpatory statements was error.
Sixth Circuit Review: Still Inadmissible Hearsay
The Sixth Circuit affirmed the exclusion of the statements during cross examination: "Because the statements that Perdue attempted to introduce were hearsay not within any exception, the district court did not its discretion by limiting the scope of Perdue’s cross-examination." < a href="http://federalevidence.com/pdf/2014/08Aug/US.v.Ford.pdf">Ford, _ F.3d at _. Each legal issue was considered.
- First, the circuit clarified that FRE 801(d)(2)(A) does not “extend to a party’s attempt to introduce his or her own statements through the testimony of other witnesses.” Ford, _ F.3d at _ (quoting United States v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005)).
- Second, no Confrontation Clause concerns were raised. Specifically, "Precluding a defendant from eliciting inadmissible hearsay statements does not violate the Confrontation Clause." Ford, _ F.3d at _ (citing United States v. Ortega, 203 F.3d 675, 682–83 (9th Cir. 2000) (rejecting claim that the Confrontation Clause required admission of exculpatory statements)).
- Third, the Rule of Completeness under FRE 106 did not permit the exculpatory statements. The circuit explained that it was well-settled that the rule of completeness “is not designed to make something admissible that should be excluded.” Ford, _ F.3d at _ (citing United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982); see also United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013) (“Right or wrong, this court has acknowledged that under Costner, ‘[e]xculpatory hearsay may not come in solely on the basis of completeness.’”) (quoting United States v. Shaver, 89 F. App’x 529, 533 (6th Cir. 2004)).
For these reasons, after the inculpatory statements of the defendant were admitted, his exculpatory statements were hearsay and were inadmissible.
The Ford case highlights the issues and analysis that typically arise when a party seeks to admit exculpatory statements. For more information on the United States v. Ortega case, see A Party Wishing To Offer Its Own Exculpatory Statements Must Testify.
For two other evidence issues reviewed in the Ford case, see Considering Gang Affiliation Evidence; Circuit Split: Whether Denial Of A Severance Motion Preserves A Later Bruton Challenge?
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