EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, September 3, 2008

The Turncoat CI: 3rd Circuit Corrects Trial Judge's Erroneous Hearsay Ruling In Drug Bust

The Third Circuit's recent opinion in United States v. Green, 2008 WL 4014129 (3rd Cir. 2008), involves a confidential informant going turncoat, the prosecution scrambling to discredit him, and the trial judge bizarrely accepting its left field argument.  In Green, Artega Green was convicted of one count of distribution of more than 50 grams of cocaine base in violation of 21 U.S.C. Section 841.  Instrumental in this conviction was an audio recording in which a CI, Michael Brown, called a cell phone number "associated with" Green and ordered 3 ounces of cocaine base, and a video in which the CI allegedly engaged in a drug transaction with Green.  The video, however, was of relatively low quality and only briefly depicted the profile of the alleged perpetrator; thus, key to the defense's case was to cast doubt as to whether Green was in fact the person depicted.

And the defense received a windfall when, "[i]n a rather dramatic turn of events," Brown decided to testify for the defense. According to Brown, Green never got out of the car on the day of the buy, and the person depicted on the video selling the drugs was an individual known as "Tex."  Brown also alleged that the DEA agents had used him before in other controlled buys, always with the goal of catching Green on tape selling drugs; however, they were never successful, and were upset at Brown because of this.

Thereafter, over Green's objection, the trial judge permitted the government to "introduce as substantive evidence a statement that Brown purportedly made some 50 minutes following the controlled buy in question, after he was brought back to DEA offices and debriefed by the case agents." (emphasis added).  In the statement, Brown attested that it was Green who sold him the drugs. While defense counsel argued that the statement should not have been admitted under Federal Rule of Evidence 613(b) because Brown had not been given the opportunity to explain or deny it on the witness stand, the trial judge admitted the statement, pursuant to the prosecution's argument, as a present-sense impression under Federal Rule of Evidence 803(1).

On appeal, the Third Circuit reversed.  It noted that Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."  The court then found that Brown's statement did not qualify for admission under this Rule, concluding,

     "While it is true, as the Government notes, that courts have not adopted any bright-line rule as to when a lapse of time becomes too lengthy to preclude Rule 803(1)''s application,...we are nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact may appropriately be considered immediately thereafter.'"

Moreover, the Third Circuit properly noted that

     "Brown's statement in this case is problematic not only because of the lengthy passage of time, but also because the statement was only made after he had been questioned by DEA agents about the details of the transaction the statement purports to describe. This undisputed sequence of events affirmatively indicates that Brown made his statement after he was expressly asked to reflect upon the events in question, and thereby fatally disqualifies the declaration for admission as a present-sense impression."

The court then found Brown's statement was also likely inadmissible under Federal Rule of Evidence 613(b) as a prior inconsistent statement because, as defense counsel noted, he was not given the opportunity to explain or deny it on the witness stand, a requirement under the Rule.  There was no need, however, for the Third Circuit to be equivocal.  As noted, Brown's statement was introduced as substantive evidence, and under Federal Rule of Evidence 613(b), the statement "could have been admissible solely for the purpose of impeaching his previous testimony," not as substantive evidence. Lippay v. Christos, 996 F.2d1490, 1499 (3rd Cir. 1993).



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I have a question for the evidence professors on this blog, and hopefully some will respond:

If a deposition transcript gets admitted at trial due to a witness's unavailability pursuant to Fed.R.Civ.P. 32(a)(4), the testimony will also be exempted from the exclusion of hearsay pursuant to FRE 804(b)(1).

Is it then permissible for other witnesses to testify about subjects contained or discussed in the admitted testimony of the unavailable witness? Or is that hearsay or otherwise impermissible?

Posted by: J. Smith | Sep 4, 2008 7:33:26 AM

I'm not quite sure that I understand the question. Once a subject is raised, whether it be be a witness or an unavailable declarant, that subject is fair game for other evidence/testimony. But that testimony can't consist of hearsay, unless it meets an applicable exception.

Posted by: Colin Miller | Sep 4, 2008 7:48:47 AM

Thanks. I'll try a hypothetical:

Smith testifies at a deposition that is introduced at trial because Smith is unavailable. In her testimony, she talks about what she told Jones. Can Jones, testifying at trial, then be questioned about what Smith told him without that being violative of the hearsay prohibition?

Posted by: J. Smith | Sep 4, 2008 8:10:59 AM

The only way that Smith could testify at her deposition about what she told Jones would be if what she told Jones was non-hearsay or met an applicable hearsay exception. That being the case, Jones could testify about what Smith told her because it would be non-hearsay or meet an applicable hearsay exception.

Posted by: Colin Miller | Sep 4, 2008 10:22:48 AM

How would it be non-hearsay?

Posted by: J. Smith | Sep 4, 2008 2:34:17 PM

Let's say that Smith talks about what she told Jones not to prove the truth of the matter asserted, but to prove notice. Then, Smith's statement to Jones would be non-hearsay.

Posted by: Colin Miller | Sep 5, 2008 5:58:30 AM

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