Evidence “Offered Not for Its Truth” by Gary Muldoon
Muldoon & Getz Rochester, New York www.muldoongetz.com
One of the more elusive types of evidence occurs when something is offered not for the truth of the matter asserted, but for some other purpose. It may seem a chimera: we may understand its purpose when offered and explained to us, but shortly afterward the head scratching begins: just what was it offered for? What can’t it be used for? How can evidence not be offered for its truth? If the concept is difficult for someone trained in law to retain, the difficulty that juries have in understanding it is likely much greater. This is an area of evidence that adjoins hearsay. Hearsay, of course, is an out-of-court statement offered for the truth of the matter. Hearsay is generally inadmissible unless the statement comes within that rule’s many exceptions. A statement not offered for its truth is, by definition, not hearsay, nor is it an exception to the hearsay rule. The head scratching persists, though. Consider an easy example, but know that a more difficult one will follow. Witness W testifies to overhearing X state that Y is a northbound end of a southbound horse. That statement is obviously not offered to establish that Y is actually an equine’s kiester. Things get a bit closer with other types of statements - for example, impeachment. A witness testifies one way at trial, but has given a prior inconsistent statement. With a proper foundation, opposing counsel may impeach the witness with that out-of-court statement. But under the rules of evidence, that previous statement is not offered for the truth of the matter asserted. Rather, it is offered to show that the witness made a totally or partially contradictory statement, and thus the witness (as would argue the cross-examiner) should not be believed. This out-of-court statement is offered for a limited purpose. A jury instruction is required in such a situation. People v Ricco, 56 NY2d 320 (1982). The instruction should be given both when the evidence is introduced and during final instructions. In People v Montgomery, 22 AD3d 960 (3d Dept 2005), a rape case, defendant’s girlfriend testified for the defense that nothing happened at her house. She was properly subject to impeachment for having given a statement to the police on the night in question in which she had implicated the defendant. But while admissible to impeach, the statement was inadmissible as affirmative evidence of guilt or to establish defendant’s propensity to commit crimes. Three problems occurred at the trial: first, no limiting instruction was given at any point. Second, on summation, the prosecutor used it in a way that the jury would have considered the statement for its truth. And third, defense counsel was deficient in never objecting – to the admission of the testimony, to the absence of a limiting instruction, or to the prosecutor’s argument on summation. The conviction was reversed. See also, People v Hughes, 72 AD3d 1121 (3d Dept 2010). On summation, it is far too easy for one side to not adhere to the limited use of a statement, and employ that evidence beyond its proper use, as occurred in People v Montgomery, supra. This misconduct can occur with other evidence on summation as well. See People v Simms, 174 AD2d 979 (4th Dept 1991); People v Scott, 217 AD2d 564 (2d Dept 1995) (prior convictions).