Statement About Conduct Was Not Hearsay Since The Statement Was Offered For The Effect On The Listener

In a civil rights trial regarding claim of excessive force in restraining the plaintiff during a diabetic low blood glucose incident, admitting statement by a responding paramedic at the scene asking for police reinforcement because the plaintiff had assaulted a responding firefighter; the statement was non-hearsay when offered to show its effect on the defendant police officers, but the same statement was hearsay under FRE 801(c) if used to prove that the plaintiff had actually taken action against a firefighter, in Bady v. Murphy-Kjos, 628 F.3d 1000 (8th Cir. Jan. 07, 2011) (No. 09-3613)

Hearsay is a flexible concept that is often misunderstood. The same statement can be interpreted as non-hearsay if used to prove, for example, that something was said or had a particular effect, or the statement can be interpreted as hearsay when it is used to prove the truth of what the statement asserts. A recent Eight Circuit case presents a mercifully short, but classic example of the difference between using a statement so that it is hearsay or as non-hearsay.

In the case plaintiff Bady was a diabetic, a condition in which, when he experienced low blood sugar it affected his brain so that his conduct could become drunk-like or hostile to others. The plaintiff appeared to have a heart attack while visiting a friend who summoned firefighters for aid. The firefighters tried to feed Bady glucose which would normally relieve the diabetic's symptoms. However, the plaintiff refused to take the glucose and ran from the firefighters. The firefighters summoned the police for assistance because they found the plaintiff to be “combative.” Bady, 628 F.3d at 1002.

At trial, a defendant officer testified that:

"when he arrived at the scene, a paramedic told him Bady had assaulted a firefighter. Sergeant Peter and Officer Stanton attempted to place handcuffs on Bady. Bady ignored Sergeant Peter's verbal commands and resisted being taken into custody. A physical altercation ensued between Bady and the officers. The situation escalated when Officer Stanton advised the other officers Bady was grabbing Officer Stanton's gun. Officers Johnson and Murphy-Kjos eventually deployed their tasers. After being 'tased' at least three times, Bady stopped resisting and placed his hands behind his back. Bady was then taken to the hospital by ambulance."
Bady, 628 F.3d at 1002.

The plaintiff filed a federal civil rights action under 42 U.S.C. § 1983. He charged the defendants with using excessive force to arrest him, violating his constitutional rights. The plaintiff sought in a motion in limine to exclude Sergeant Peter's testimony that "an unknown paramedic at the scene of the arrest told Sergeant Peter that Bady had just assaulted a firefighter. Bady argued the statement was inadmissible hearsay. The district court denied Bady's motion, finding the statement was not hearsay because it was probative of what the officers knew or thought they knew at the time of the arrest." The jury decided against the plaintiff and he appealed, contending in part that the statement reported by Sergeant Peter should have been excluded as hearsay. Bady, 628 F.3d at 1002.

The Eighth Circuit rejected the plaintiff's contention on appeal. It rejected the plaintiff's motion because the statement was not inadmissible hearsay. The circuit discounted the plaintiff's contention that the district judge "should have excluded the paramedic's statement as inadmissible hearsay. Hearsay is an out-of-court statement 'offered in evidence to prove the truth of the matter asserted.' Fed.R.Evid. 801(c). '[E]vidence is not hearsay when it is used only to prove that a prior statement was made and not to prove the truth of the statement.' “A common type of statement that falls outside the hearsay definition, because it is not offered for its truth, is a statement that is offered to show its effect on the recipient.” Bady, 628 F.3d at 1003 (citing Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir. 1999).

As explained by the circuit:

The district court determined the challenged paramedic's statement was admissible because the officers did not offer it to establish Bady had assaulted a firefighter, but 'to establish the totality of the circumstances relevant to determining whether the force used in seizing Bady was objectively reasonable.' Indeed, Bady acknowledges the truth at issue in this case is 'not whether Bady had actually assaulted a firefighter,' but 'whether the statement was made at all.' Offered for that purpose, the contested statement is not hearsay and the district court did not err in admitting it."
Bady, 628 F.3d at 1003 (citing Anderson v. United States, 417 U.S. 211, 220 n. 8 (1974)).

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