The "Evidentiary Use" Of Speech Under The First Amendment

Can the First Amendment provide protection to certain speech that bars its admission at trial? The Fifth Circuit recently examined a case raising this issue and concluded that a defendant's statement regarding his criminal activities (that there "ain't a jury in the state" that would convict him of the charged embezzlement of government funds) was not protected by the First Amendment and the statement was probative of his intent of the charged embezzlement, in United States v. Jefferson, _ F.3d _ (5th Cir. May 1, 2014) (No. 12–60661)

While the First Amendment provides important protections against government interference with speech, can it protect against the admission of evidence at a criminal trial? The Fifth Circuit recently considered a case in which the defendant claimed "that the admission of her statements violated her First Amendment rights."

Trial Court Proceedings

In the case, defendant Jefferson was prosecuted for embezzling government funds, witness tampering and obstruction. As Executive Director of a regional housing authority, she had arranged for funds which had been supplied by the federal government for low-income housing, to renovate her own residence. Witnesses, primarily her subordinates at the regional housing authority, provided evidence that the defendant actually diverted government funds to renovate her own residence. Thus, renovations to her house, "including [a] patio, Jucuzzi, refrigerator, range, dish washer," had been supplied from government funds. Jefferson, _ F.3d at _.

At trial, the court admitted the government's evidence concerning a conversation between the defendant and two other agency employees concerning a third employee, Wuestenhoefer's cooperation with the FBI's investigation" of the defendant's activities. The evidence provided the defendant's opinion about her ability to prevail over investigators. Defendant Jefferson shared her views with co-defendants Brady and Logan, also agency employees, that she would not be successfully convicted at trial:

That mean I can come in here and do whatever the hell I want to do. I’m gon’ clean house.
Now they couldn’t prove their case.
They couldn’t prove their case. ‘Kay.
They couldn’t prove it.
Now let me tell you another thing too . . .
Wuestenhoefer Brady:
What jury? Okay go ahead . . .
Oh yeah they gon’ have to have a jury . . .
Yeah if they take it to court.
Let . . . let me tell you something . . .
Yeah but you . . . (UI)
A jury in . . . in Greenville. You understand what I’m sayin’?
Greenville? Ain’t nowhere . . .
I’m tellin’ you, there ain’t a jury in the state of Mississippi will find a person guilty for this s--t. You understand what I’m sayin’? I don’t care who they are. And the person might . . . would they put on the stand . . . I would be the person. And that . . . I would be the first and only.
Jefferson, _ F.3d at _.

The defendant did not object to this recording at trial nor its use during pretrial proceedings. However after the recording was played to the jury the defendant moved for a mistrial as evidence "highly prejudicial" and "intended to inflame the jury's punitive instincts" and that there was "no probative reason for offering" the statement. The district court rejected the claim for mistrial, noting that the recording was probative as to the charges against the defendant of retaliating against the witnesses. Following the defendant's conviction by the jury, on appeal she renewed her FRE 403 claim of unfair prejudice, along with a claim that the statements were not admissible as they reflected her exercise of First Amendment rights to free speech.

Fifth Circuit Analysis

The Fifth Circuit affirmed the admission of the statements. It considered the defendant's First Amendment claim only in a footnote. The circuit rejected the defendant's claim "that the admission of her statements violated her First Amendment rights because her statements did not constitute unprotected speech under Brandenburg v. Ohio, 395 U.S. 444 (1969)." Jefferson, _ F.3d at _ n.5. The circuit found this argument lacked any merit. As the circuit noted, “[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.” Jefferson, _ F.3d at _ (quoting Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) ("Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.")).

With the First Amendment issue addressed, the circuit considered the admissibility of the statements under FRE 403 in assessing whether the trial judge properly denied a mistrial. Admission of the evidence may have been prejudicial, but it was not unfairly so. According to the circuit, the recording was:

highly probative of Jefferson’s intent to retaliate against SDRHA employees who cooperated with the FBI’s investigation, and she was on trial for three counts of retaliation. To be sure, the recording may have prejudiced Jefferson, but as we have explained previously, "all probative evidence is by its very nature prejudicial.” We cannot say that any prejudice here outweighed — much less substantially outweighed — the highly probative value of the recording.
Jefferson, __ F.3d at __ (emphasis in original) (citing United States v. Powers, 168 F.3d 741, 749 (5th Cir. 1999); United States v. El-Mezain, 664 F.3d 467, 508 (5th Cir. 2011))


The Jefferson case addresses two key issues. First, the circuit addresses a claim whether the First Amendment may confer protected status to statements to bar their admission at trial. On this issue, the circuit's treatment concludes that the "evidentiary use" of the statements was not barred by the First Amendment.

Second, the case confirms that probative evidence will be admitted unless it is unfairly prejudicial under FRE 403. As the circuit noted, while the probative value of the statements may have been prejudicial, it was not "unfairly" prejudicial within the meaning of FRE 403. The jury was permitted to considered the evidence.


Photo Description: John Minor Wisdom, Fifth Circuit Court of Appeals Courthouse in New Orleans, LA. Learn more about the courthouse.


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