The Non-Hearsay Of False Statements

When a fraudulent or false statement is made, how does the rule against hearsay consider the admissibility of the statement? A line of cases holds that when a statement is offered to show the falsity, the hearsay rule is not implicated, including by the Supreme Court in Anderson v. United States, 417 U.S. 211, 220-21 (1974)

The hearsay rule precludes an out of court statement which is offered "to prove the truth of the matter asserted in the statement," under FRE 801(c)(2), unless a hearsay exception applies. However, as recently noted in the Federal Evidence Blog, fraudulent statements may be admitted as non-hearsay. See Fraudulent Check Endorsements Were Not Hearsay (considering United States v. Bowles, _ F.3d _ (1st Cir. May 7, 2014) (No. 13–1575) (in theft of government funds trial, the hearsay rule did not apply to check signature endorsements which were forged and therefore not offered for the truth of the matter asserted)).

This issue typically arises in cases involving fraudulent or false statements. For other case examples, consider:

  • Supreme Court: 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.”)
  • Sixth Circuit: United States v. Hathaway, 798 F.2d 902, 907 (6th Cir. 1986) (statements that defendant intended to defraud customers was admissible as false exculpatory and was not hearsay since not offered for the truth of the matter).
  • Ninth Circuit: United States v. Candoli, 870 F.2d 496, 508 (9th Cir. 1989) (officer questioning two individuals could not recall which made a false exculpatory statement; statement was admissible alternatively as an admission or false exculpatory); United States v. Hackett, 638 F.2d 1179, 1186-87 (9th Cir. 1980) (statements of one codefendant admissible against another admissible as false exculpatory, implying consciousness of guilt, and were not hearsay), cert. denied, 450 U.S. 1001 (1981)
  • D.C. Circuit: See also United States v. Fahnbulleh, _ F.3d _ (D.C. Cir. June 13, 2014) (Nos. 11–3045, 11–3047) (in fraud prosecution, in considering the admissibility of business records, circuit notes but does not decide whether the records would not raise a hearsay issue if the records were offered for the non-hearsay purpose to establish the falsity of the records) (citing Anderson v. United States, 417 U.S. 211, 220 (1974))

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