Trial Tactics

Stephen A. Saltzburg

Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a Section delegate to the ABA House of Delegates.

When an out-of-court statement is offered at trial not to prove the truth of whatever the statement asserted but for another purpose, the statement is not hearsay. This concept is captured in Federal Rule of Evidence 801(c), which defines hearsay as follows: "(c) Hearsay.—‘‘Hearsay’’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

The same concept existed as common law and was recognized in every American jurisdiction in one way or another. Its explanation is simple: If a statement is not being used to prove the truth of what is asserted, the trier of fact is not being asked to treat the declarant as though he or she were a witness relied upon to prove the truth of a factual assertion. As long as the party relying on the out-of-court statement does not claim that the contents are true, the need for cross-examination and confrontation of the declarant diminishes as compared to the need to examine trial witnesses.

Example: Tennessee v. Street

One example of the non-hearsay use of an out-of-court statement is Tennessee v. Street, 471 U.S. 409 (1985). Street was charged with murder after he and an accomplice were surprised in the act of burglarizing a house and hanged the homeowner from a tree. Street confessed in detail, but at trial denied participation in the crimes and claimed that his confession was coerced. He alleged that the police had given him his accomplice’s statement and coerced him into adopting it as his own. The accomplice’s confession was not admissible for its truth against Street. It was classic hearsay, and the prosecutor probably decided not to try Street and the accomplice together because limiting instructions were deemed inadequate in Bruton to protect one defendant against the improper use of a confession by the other, nontestifying defendant. (Bruton v. United States, 391 U.S. 123 (1968).) But the prosecutor could try each defendant individually using his own confession against him.

When Street testified at his trial that his confession was coerced because police forced him to imitate the accomplice’s confession, the prosecutor offered the accomplice’s confession as evidence—not for its truth, but so that the jury could assess whether it appeared to have influenced Street. Using the sheriff’s testimony, the prosecutor demonstrated that there were differences between the confessions and argued that Street’s confession contained facts implicating him that were not found in his accomplice’s confession. Thus, Street’s confession must have been based upon his own participation in the crime.

The U.S. Supreme Court unanimously held that the use of the accomplice’s confession was for a non-hearsay purpose and did not implicate the Confrontation Clause of the Sixth Amendment. The case illustrates how an out-of-court statement may be used for a purpose other than its truth and, thereby, escapes exclusion under the hearsay rule or the Confrontation Clause.

There are limits, however, to the use of out-of-court statements. One of the most famous examples is Shepard v. United States, 290 U.S. 96 (1933). Dr. Shepard, a major in the U.S. Army Medical Corps, was convicted of murdering his wife. The government alleged that Dr. Shepard poisoned his wife with bichloride of mercury. A key piece of evidence was the testimony of Mrs. Shepard’s nurse, Clara Brown, who testified that she had a conversation with Mrs. Shepard who was ill in bed. Brown said that Mrs. Shepard asked her to retrieve a bottle of liquor from a shelf in Dr. Shepard’s room. When Brown produced the bottle, Mrs. Shepard said she had drunk some of the whiskey shortly before collapsing and wondered if there was enough left in the bottle to test for poison, claiming, "Dr. Shepard has poisoned me." This is the key statement and the focus of our attention, as it was the Court’s.

The government actually offered this evidence twice. After first proving it, the government asked that it be striken out of a concern that it was inadmissible. Later in the trial, the government again offered the evidence after the nurse testified that Mrs. Shepard has said "[s]he said she was not going to get well; she was going to die." Apparently, the government believed that this qualified the statement as a dying declaration.

Justice Cardozo, writing for a unanimous Court, found that the statement did not qualify as a dying declaration, because "[t]o make out a dying declaration the declarant must have spoken without hope of recovery and in the . . . shadow of impending death, and the government failed to show this as to Mrs. Shepard." (290 U.S. at 98–99.)

In an effort to save its conviction, the government argued that the statement could have been admitted to negate the defense’s suggestion that Mrs. Shepard may have been suicidal. The problem, as Justice Cardozo saw it, was that the government did not offer the evidence for this purpose and the jury was not instructed that it was offered for that purpose alone:

The testimony was neither offered nor received for the strained and narrow purpose now suggested as legitimate. It was offered and received as proof of a dying declaration. What was said by Mrs. Shepard lying ill upon her deathbed was to be weighed as if a like statement had been made upon the stand. The course of the trial makes this an inescapable conclusion. The Government withdrew the testimony when it was unaccompanied by proof that the declarant expected to die. Only when proof of her expectation had been supplied was the offer renewed and the testimony received again. For the reasons already considered, the proof was inadequate to show a consciousness of impending death and the abandonment of hope; but inadequate though it was, there can be no doubt of the purpose that it was understood to serve. There is no disguise of that purpose by counsel for the Government. They concede in all candor that Mrs. Shepard’s accusation of her husband, when it was finally let in, was received upon the footing of a dying declaration, and not merely as indicative of the persistence of a will to live. Beyond question, the jury considered it for the broader purpose, as the court intended that they should. A different situation would be here if we could fairly say in the light of the whole record that the purpose had been left at large, without identifying token. There would then be room for argument that demand should have been made for an explanatory ruling. Here the course of the trial put the defendant off his guard. The testimony was received by the trial judge and offered by the Government with the plain understanding that it was to be used for an illegitimate purpose, gravely prejudicial.

(290 U.S. at 102–103.)

Justice Cardozo left no doubt, however, that even if the government had offered the statement for the limited purpose it argued on appeal, the trial judge would have been required to exclude it. In oft-quoted words, Justice Cardozo wrote:

Aside, however, from this objection, the accusatory declaration must have been rejected as evidence of a state of mind, though the purpose thus to limit it had been brought to light upon the trial. The defendant had tried to show by Mrs. Shepard’s declarations to her friends that she had exhibited a weariness of life and a readiness to end it, the testimony giving plausibility to the hypothesis of suicide. Wigmore, § 1726; Commonwealth v. Trefethen, 157 Mass. 180; 31 N. E. 961. By the proof of these declarations evincing an unhappy state of mind the defendant opened the door to the offer by the Government of declarations evincing a different state of mind, declarations consistent with the persistence of a will to live. The defendant would have no grievance if the testimony in rebuttal had been narrowed to that point. What the Government put in evidence, however, was something very different. It did not use the declarations by Mrs. Shepard to prove her present thoughts and feelings, or even her thoughts and feelings in times past. It used the declarations as proof of an act committed by someone else, as evidence that she was dying of poison given by her husband. This fact, if fact it was, the Government was free to prove, but not by hearsay declarations. It will not do to say that the jury might accept the declarations for any light that they cast upon the existence of a vital urge, and reject them to the extent that they charged the death to someone else. Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. They have their source very often in considerations of administrative convenience, of practical expediency, and not in rules of logic. When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out. . . .

(290 U.S. at 103–104) (emphasis added.)

In short, Justice Cardozo and the entire Court concluded that it would not be possible for a jury to hear the statement "Dr. Shepard has poisoned me" and to use it only to discount the likelihood of suicide while ignoring the truth of the fact asserted. The words "[w]hen the risk of confusion is so great as to upset the balance of advantage, the evidence goes out" are the common law version of Federal Rule of Evidence 403. They are a reminder that articulating a non-hearsay purpose for offering an out-of-court statement does not guarantee that the statement will be admitted. Concerns about unfair prejudice both at common law and under rules like FRE 403 may result in exclusion of statements. So may the Confrontation Clause.

A recent case illustrating the impact that the Confrontation Clause may have when out-of-court statements are offered for a purpose other than their truth is Thomas v. Hubbard, 273 F.3d 1164 (9th Cir. 2001). Larry Thomas was convicted of first-degree murder and personal use of a deadly weapon. He was charged with killing Michael Luke, whose body was found in an apartment building parking lot. The police found no murder weapon and had no physical evidence linking Thomas to the murder. The only eyewitness was Austin Schwab, who lived in the apartment building and owed money to the victim. Thomas alleged that Schwab was the murderer. He testified that he had gone to Schwab’s apartment to collect $200 he had given Schwab for methamphetamine that had not been delivered. He ran into Luke who was also there to collect a debt from Schwab. Thomas claimed that he and Luke finally confronted Schwab, who promised to pay back the money that very day. Thomas then left the apartment building, he said, and did not return that day.

Schwab, on the other hand, testified that Thomas and Luke wanted him to sell a video camera and give them the profits. But Thomas, according to Schwab, voiced concerns that Luke was going to cheat him and the two got into an argument. Schwab said he was unsuccessful in his attempts to sell the camera and when he returned to his apartment he met Luke who asked for a ride. Thomas then appeared and flagged them down. According to Schwab, Thomas stabbed Luke in the chest and ran off. When the police arrived, however, Schwab neglected to mention anything about the video camera sale or Thomas’s concern that Luke would cheat him out of profits.

During the cross-examination of the deputy sheriff in charge of the homicide investigation, the following exchange occurred:

Q. Did [Schwab] tell you that, in fact, the victim and Larry Thomas had been together with him talking earlier; were you aware of that?

A. No.

Q. You would have been interested in that, would you not?

A. If, in fact, that occurred.

Q. And if there was, in fact, some sort of business negotiation that took place with Schwab involving both the defendant, Larry Thomas, the victim, you would have been interested in that, would you not?

A. If that was correct.

Q. Now, if there was, in fact, an argument between Larry Thomas and the victim at this time, that would have been certainly relevant with respect to motive, et cetera, would it not?

A. If that’s correct.

Q. Did he tell you anything like that?

A. No.

(273 F.3d at 1171 n.2.)

This cross-examination was clearly intended to elicit the fact that Schwab did not tell the investigator about any conversation he had with both Thomas and Luke or that Thomas and Luke had an argument. The thrust was to suggest that Schwab might have invented his testimony to protect himself.

On redirect of the sheriff’s deputy, the prosecution responded by eliciting testimony about Thomas’s possible motive to kill Luke:

Q. Counsel also asked you a lot of questions regarding statement [sic] regarding motive or possible reasons for this homicide occurring. Did you ask Austin Schwab if he had any idea why this homicide may have occurred?

A. Yes.

Q. Did he give you a possibility?

Defense counsel: Objection, hearsay.

Prosecutor: He’s covered this area.

The Court: Just a moment. Objection is overruled. Answer the question, please.

Prosecutor: Go ahead.

A. He made mention of a—may I look at my reports?

Q. Sure. If that refreshes your recollection, go ahead and look at your report. I think maybe on the last page.

A. He said that he didn’t really know why Larry had stabbed Mike or what it was over. That was what he said, but he speculated by saying, "I was told by a guy that I know only by the name of Nick that Larry and Mike had gotten into a fist fight earlier in the day. Nick said Larry got beat up by Mike, and Larry told Michael he was going home to get his knife. Mike said: Well, go home and get your knife then. I don’t know Nick’s last name or where he lives. I will try and contact Nick and will give him your card and have him call you."

(273 F.3d at 1171 n.3.)

Although Thomas’s conviction had been affirmed on appeal and a federal district judge denied him habeas corpus relief, the Court of Appeals for the Ninth Circuit found that he had been denied a fair trial. One reason it gave was the admission of triple hearsay. It examined the last answer by Schwab as follows: "[T]he state elicited testimony over Thomas’s objection that Schwab did tell [the sheriff’s deputy] during an out-of-court interview (first level of hearsay) that ‘a guy’ named Nick had told Schwab (second level of hearsay) about a confrontation that Nick apparently observed between Luke and Thomas at a different time on the day of the murder (third level of hearsay)." (273 F.3d at 1171.)

The Ninth Circuit was concerned about the hearsay even though defense counsel’s final objection was sustained and the trial judge instructed the jury to disregard the testimony:

Defense: Your Honor, I object on the basis that is double, triple hearsay, speculation of the worse [sic] sort, and ask that the answer be stricken.

Prosecutor: Not offered for the truth, your Honor, just offered in retort to [defense counsel’s] questions about his regard about motive and did he interview him, did he share information about that.

Defense: That’s . . .

The Court: Hold on just a moment, just a moment. The motion is granted. The answer is stricken from the record. The jury must disregard the last answer.

(273 F.3d at 1171–72 n.4.)

The state argued to the Ninth Circuit that Schwab’s redirect testimony did not implicate the Confrontation Clause because the testimony was not admitted for its truth and because the defense opened the door to the testimony. The Ninth Circuit rejected both arguments. Using an analysis like that of Justice Cardozo in Shepard, the court reasoned as follows:

The state is correct that, as a general rule, statements introduced for a limited purpose only, and not for the truth of the matter asserted, do not implicate the Confrontation Clause, see United States v. Inadi, 475 U.S. 387, 398 n.11, 89 L. Ed. 2d 390, 106 S. Ct. 1121 (1986); United States v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988). The jury is ordinarily instructed that it may consider such statements for the limited purpose only and, in most circumstances, we can safely assume that jurors will follow these instructions and not consider the truthfulness of the out-of-court statements. See, e.g., Greer v. Miller, 483 U.S. 756, 767 n.8, 97 L. Ed. 2d 618, 107 S. Ct. 3102 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence. . . ."); United States v. Kallin, 50 F.3d 689, 694–95 (9th Cir. 1995) (same). There are, however, some cases in which out-of-court statements are so prejudicial that a jury would be unable to disregard their substantive content regardless of the purpose for which they are introduced and regardless of any curative instruction. See, e.g., United States v. Mayfield, 189 F.3d 895, 901–02 (9th Cir. 1999) (holding that jury could not abide by an instruction to consider an informant’s incriminating statements only to show an officer’s state of mind while executing a search warrant); White v. Cohen, 635 F.2d 761, 762–63 (9th Cir. 1981) (holding that the prejudice flowing from references to unrelated charges against the defendant in a tape that was used for impeachment purposes could not be cured by the court’s limiting instruction); United States v. Caldwell, 466 F.2d 611, 612 (9th Cir. 1972) (describing the jury’s inability to follow instruction to consider informant testimony implicating the defendant in a drug conspiracy only for the purpose of showing the informant’s relationship with known drug dealers and not as proof of the defendant’s guilt). In such instances, the effect of the testimony on the jury is the same as it would be if the statements were admitted for the truth of their contents. Thus, whether or not such statements are classified as hearsay, they may violate the Confrontation Clause. See Lee v. McCaughtry, 892 F.2d 1318, 1325 (7th Cir. 1990) (noting that "complicating circumstances "may result in a Confrontation Clause violation when non-hearsay is admitted); cf. Tennessee v. Street, 471 U.S. 409, 414–15, 85 L. Ed. 2d 425, 105 S. Ct. 2078 (1985) (finding no Confrontation Clause violation but suggesting that the introduction of non-hearsay statements could violate the Confrontation Clause in some circumstances).

The "triple hearsay" statement at issue in this case is precisely the type of statement that a jury would be unable to ignore or to consider for a limited purpose only. The statement describing a physical confrontation between Thomas and Luke in which Luke beat up Thomas on the very day that Luke was killed and reporting that Thomas told Luke after the beating that he was going home to "get his knife" "provides the only evidence that Thomas had both a motive to kill Luke and access to the type of weapon used to commit the crime. Evidence of motive, if believed, completes the prosecution’s theory of the case by explaining the purpose of and reason for the defendant’s actions. Because motive provides the jury with a framework within which to analyze the defendant’s purported actions, it is extremely difficult to ignore or disregard evidence of motive once it is presented.

(273 F.3d at 1172–73.)

The Ninth Circuit also rejected the state’s argument that the defense had opened the door to the testimony. It observed that defense counsel asked about a particular discussion and a particular argument, not whether Schwab had heard about any other arguments: "The defense’s questions regarding the argument about which Schwab testified did not open the door to [the deputy sheriff’s] testimony regarding other arguments about which Schwab did not testify. See United States v. Collicott, 92 F.3d 973, 980–81 (9th Cir. 1996) (describing the ‘opened door’ doctrine as not allowing evidence to be admitted if such evidence is not relevant to the ‘door’ that was opened)." (273 F.3d at 1174.)

The Ninth Circuit’s analysis goes one step beyond Shepard in finding that the trial judge’s instruction to the jury to disregard the testimony it heard was inadequate to protect Thomas. Although the court found several other prejudicial errors and did not have to decide whether the introduction of the triple hearsay would require a reversal absent any other error, it noted that "[w]ere we to resolve this issue, we would, in all likelihood, hold the error, standing alone, to be sufficiently prejudicial to warrant reversal and also hold that the state courts’ failure to recognize this error constituted an unreasonable application of clearly established federal law." (273 F.3d at 1174.)

It is not clear whether Thomas’s defense counsel actually raised a Confrontation Clause objection in addition to the hearsay objection. A look back at Shepard and an examination of Thomas suggest that prudent defense counsel, who are concerned that an out-of-court statement will be extremely prejudicial even if not offered for its truth, should raise objections under rules like FRE 403 and also consider a Confrontation Clause objection. Many courts would hold that an "undue prejudice" objection is not sufficient to preserve a constitutional claim.

It is also unclear whether Thomas’s defense counsel made a record at trial that the redirect examination was not a fair response to the cross-examination, and that the "opening the door" argument of the prosecution was erroneous under the circumstances. Once again, it seems that prudent defense counsel will want to make the point on the record in the trial court in the first instance. Even though the trial judge struck the challenged testimony, not all courts would have understood as readily why the prosecution’s redirect was really not responsive to the cross-examination. It is always better for defense counsel to make that clear at trial rather than relying on an appellate tribunal (especially a habeas appellate court) to see the point.

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