Tuesday, February 22, 2011
The Hole Dang Thing: Supreme Court Of Rhode Island Finds Calling Of Defendant By Nickname Not Hearsay
Like its federal counterpart, Rhode Island Rule of Evidence 801(c) defines hearsay as
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.
So, let's say that an eyewitness to a crime testifies that a man with the nickname "Dang" committed a crime. Can the prosecution call a witness to testify that people use that nickname to refer to the defendant charged with the crime. Is the use of that nickname hearsay? According to the recent opinion of the Supreme Court of Rhode Island in State v. Johnson, 2011 WL 576082 (R.I. 2011), the answer is "no."
In Johnson, the facts were as stated above, with Kendall Johnson being charged with (1) assault with a dangerous weapon (namely, a firearm); (2) discharging a firearm while committing a crime of violence, causing injury; (3) assault with intent to rob; and (4) carrying a pistol without a license. Yolanda Reed, an eyewitness to the crime unequivocally identified the perpetrator as "Kendall Johnson" or "Dang," despite the fact that he was wearing a ski mask that covered much of his face. According to Reed, "despite the mask, she recognized Mr. Johnson by his walk, his voice, his eyes, and his clothes."
Thereafter, a police officer testified that he knew Johnson's nickname to be "Dang" in part because Johnson responded when other people called him "Dang." The Supreme Court of Rhode Island disagreed, finding that
a multitude of courts have held that evidence about a person's nickname, in this context, does not constitute hearsay because the use of such a name does not rise to the level of an assertion. See United States v. Allen, 960 F.2d 1055, 1059 (9th Cir. 1992) ("One virtually always learns a name-even one's own-by being told what it is. * * * Nevertheless, evidence as to names is commonly regarded as either not hearsay because it is not introduced to prove the truth of the matter asserted, * * * or so imbued with reliability because of the name's common usage as to make any objection frivolous."); United States v. Weeks, 919 F.2d 248, 251 (5th Cir. 1990) (holding that a prison warden's testimony that guards and inmates used a nickname to refer to the defendant was merely a report of “non-assertive oral conduct and was therefore not hearsay”); Commonwealth v. Gabbidon, 494 N.E.2d 1317, 1320 (Mass. 1986) (determining that witness's testimony about observing others call the defendant several nicknames did not constitute hearsay because it "was not admitted for the truth of any fact asserted outside of court"). We are persuaded by the logic of these holdings and concur with it.
Of course, as the court also noted, Reed also identified Johnson by his actual name and characteristics, meaning that even if the statements about his nickname were hearsay, their admission was harmless error.