Considering False Statements And The Hearsay Rule

In bribery prosecution, Seventh Circuit considered the admissibility of false statements made by one of the participants to the FBI and concludes that the statements were not inadmissible hearsay under FRE 801(c); the statements were also probative whether the declarant was "a knowledgeable and culpable participant in the bribery conspiracy and was attempting to cover up his involvement," in United States v. Whiteagle, _ F.3d _ (7th Cir. July 21, 2014) (No. 12-3554)

How do out of court statements that are false square with the hearsay rule under FRE 801(c)? The Seventh Circuit recently took note of this issue.

Trial Court Proceedings: Admission Of False Statements Made To Agent

In the case, defendant Whiteagle was charged with bribing and conspiring to bribe a legislator with the Ho-Chunk Nation of Wisconsin, a federally recognized Indian tribe. Investigators discovered a corrupt relationship between the defendant and Pettibone, who was a legislator with the Ho-Chunk Nation. The investigation uncovered payments from Whiteagle to Pettibone, a Pontiac Firebird that Whiteagle gave to Pettibone, and various communications related to obtaining a contract involving Ho-Chunk casinos. During the investigation, the FBI interviewed Pettibone. He made a series of false statements which were admitted at trial. The jury convicted the defendant. Later, he claimed that the admission of the false statements made to the FBI "invited the jury to speculate that Pettibone in fact was a member of the conspiracy without actual evidence establishing that this was true."

Seventh Circuit Review: Considering The Purpose Of the Statement

The Seventh Circuit affirmed the admission of the false statements by the trial court. The rule against hearsay did not bar the statements since they "were not admitted for their truth." The circuit noted that "in light of the other evidence presented in the case, the statements were quite obviously false." Whiteagle, _ F.3d at_. In support, the circuit cited to the following cases:

  • Anderson v. United States, 417 U.S. 211, 220-21 (1974) (“[T]he point of the prosecutor's introducing those statements was simply to prove that the statements were made so as to establish a foundation for later showing, through other admissible evidence, that they were false. . . . Here, since the prosecution was not contending that anything [the codefendants] said at the election contest was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue.”)
  • United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994) (concluding that a false statement concerning the ownership of an automobile was false and therefore was not hearsay under FRE 801(c))
  • United States v. Adkins, 741 F.2d 744, 746 (5th Cir. 1984) (information in a Dun & Bradstreet was false and was not hearsay)

Additionally, the circuit noted that since "Pettibone falsely claimed ignorance of things that he in fact knew about Whiteagle tended to show that he was, contrary to Whiteagle’s defense, a knowledgeable and culpable participant in the bribery conspiracy and was attempting to cover up his involvement." Whiteagle, _ F.3d at_ (citing United States v. Rosen, 716 F.3d 691, 702 (2d Cir. 2013) (noting the "failure to disclose the consulting agreements" was probative of "a deliberate attempt to conceal a corrupt relationship" or "consciousness of guilt")). Finally, the false statements did not implicate the defendant's right to cross examine Pettibone about the statements since they "did not expressly inculpate Whiteagle." Whiteagle, _ F.3d at_, n.8.


The Whiteagle case provides more authority for the proposition that out of court statements that are not offered for the truth of the matter asserted, do not run afoul of the hearsay rule. For other cases considering this issue, consider these posts from the Federal Evidence Blog:


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