Definition of Hearsay, Fed.R.Evid. 801(a)-(c): Effect on Listener-Investigatory Background; Interrogation Accusations and Opinions

Effect on Listener — Investigatory Background Effect on listener statements are not hearsay as relevant based solely upon the fact said when offered to establish knowledge, notice, or awareness, etc., on the part of the listener. Such knowledge, notice, or awareness, etc., is relevant when the probable state of mind of the listener is itself an issue. Such statements may be relevant in other contexts as a circumstance under which the later acted or as bearing upon the likelihood of later disputed conduct, e.g., providing a motive or reason for later disputed conduct. Such a statement may alternatively be relevant as bearing upon the reasonableness of the listener’s subsequent conduct, e.g., apprehensive of immediate danger. Of course, the same statement which is not hearsay when offered for its effect on listener, i.e., relevant for the fact said, is hearsay under Fed.R.Evid. 801(a)-(c) when offered in evidence to prove the truth of the matter asserted. Thus, a statement by Harry to John that Sam is the person who keyed John’s car is not hearsay when offered as relevant to establish John’s motive, and thus relevant to prove that John was the person who slashed Sam’s tires, but hearsay when offered to prove that Sam in fact keyed John’s car. The giving of a limiting instruction is appropriate. Statements made to a police officer relied upon by the police officer and thus shaping the police officer’s subsequent conduct or investigation is frequently referred to as “investigatory background” or similar terms. Similar to inextricably intertwined other crimes, wrongs, or acts evidence, an “investigatory background” statement linked closely in point of time and space to the criminal event serves to complete the story, or fill in chronological voids “to give the jury a complete picture at trial” of the criminal investigation “and” to ensure the jury is not confused in a way that would be unfavorable to the prosecution.” Sanabria v. State, 974 A.2d 107, 112 (Del. 2009). When offered as investigatory background the evidence is not hearsay. If the content of the statement made to the police officer is disclosed and offered for its truth, the statement is hearsay. Question Given the foregoing, the prosecution uniformly asserts that the statement, content disclosed, is being offered solely for its non hearsay effect on listener purpose and will kindly accept a limiting instruction to such an effect. The accused will object that in spite of the presence of a limiting instruction, the jury hearing the content of an often very inculpatory out-of-court declaration by a frequently unavailable declarant will give such statement substantive effect and that the danger of unfair prejudice requires exclusion of the content of the statement and maybe even mention of the existence of the statement itself under Fed.R.Evid. 403. Answer Applying a best practice approach, if a police officer testifies to receiving a radio call to proceed to a particular location to investigate “a murder”, the reference to “a murder” is not necessary to explain the circumstances under which the police officer acted and thus should be excluded. Testimony in that case of the existence of a radio call alone should be admitted. In the case of hypothetical 1, only the fact at most that upon “information received” at the scene of the 7-Eleven robbery and murder, the detective proceeded to an apartment building at, etc., should be introduced and not the content of Mary’s statement that John was the perpetrator. With respect to both the radio call and our hypothetical scenario, if the facts were altered to include that the police officer/detective when he actually arrived at the scene, shot a person leaving the building, the fact the policeman had been advised concerning “a murder” may, depending on other circumstances, be relevant in determining the lawfulness of his shooting. Blanket admission of the content of the out-of-court incriminating witness statement to a law enforcement official as relevant for the fact said/effect on listener as providing “investigatory background”, as occurs fortunately only in a few jurisdictions, accompanied by a limiting instruction over a Fed.R.Evid. 403 objection, is clearly designed to improperly favor the prosecution by means of the inevitable employment substantively of such statements such as Mary’s by the jury. This practice is a clear improper application of Fed.R.Evid. 403 and should no longer be countenanced. Interrogation Accusations and Opinions Statements made during law enforcement interrogation of a person, usually the criminal defendant, as part of a conversation, i.e., responded to by the person being interrogated, are not hearsay when admitted for the fact said, subject to Fed.R.Evid. 403, as providing context to the defendant’s response. See, e.g., State v. Jones, 398 S.W.3d 518, 526 (Mo.App. E.D. 2013) (“After carefully reviewing the record, we find no abuse of discretion in the trial court's decision to admit the full transcript of Jones's interrogation. Officer Paiva's statements were offered at trial to provide context to Jones's answers during the interrogation. Jones's statements during the interrogation were made in response to specific questions by Officer Paiva, and the text of those questions was therefore helpful to understand the full context of Jones's answers. Officer Paiva's statements occurred in the context of, and were admitted to show, a give-and-take conversation with Jones. See O'Brien, 857 S.W.2d at 222. Accordingly, the statements did not constitute impermissible opinion evidence. Point denied.”); State v. Paul B., 70 A.3d 1123, 1137 (Conn.App. 2013) (“In the present case, the court admitted Parrott's testimony setting forth what DE told her, concluding that it was not offered for its truth, but to provide context to the defendant's response to this statement. The court also determined that each of the allegations in the statement was supported by testimony from prior witnesses and, thus, was supported by evidence already in the record. Without knowing the statements made to the defendant that led to his response, ‘well, if the boys said I did that, then maybe I did. I just don't remember,’ his statement would have no meaning. Our review of the record demonstrates that the statement was admitted for the limited purpose of providing context to the defendant's response. We conclude, therefore, that Parrott's testimony did not constitute hearsay and was properly admitted by the court.”). A factual pattern recently addressed by the Supreme Courts of Florida, Massachusetts and Michigan, involves police interrogation of the criminal defendant during which the police officer expresses his opinion of the defendant’s guilt, calls the defendant a liar, states that a witness has made a statement on personal knowledge detailing the accused’s guilty conduct and/or that someone, maybe a relative, has told the authorities that she knows the defendant did the crime, etc. The accused during this police interrogation either stays silent, denies the truth of fact and opinion accusatory statements by the police officer or alleged statements of others related by the police officer and/or responds in a positive or descriptive manner solely to non-accusatory statements made by the police officer during the interrogation. Under the foregoing circumstance, the prosecution has argued relevancy to establish “investigatory background”, “course of investigation”, or “context”. While the Michigan Supreme Court has opined that “it finds it unnecessary to adopt a bright-line rule for the automatic exclusion of out-of-court statements made in the context of an interrogation that comment on another person’s credibility,” ultimately the Michigan Supreme Court in fact joins the Florida Supreme Court and the Massachusetts Supreme Court in precluding admissibility of the content of all police officer’s statements made during an interrogation that proceeds as detailed above. Unfortunately, New Hampshire, Arkansas, Maine, and several other jurisdictions have yet to see the full error of their ways.