Rivera: Statements incapable of being true or false are not hearsay

In U.S. v. Rivera, No. 13-13125 (March 12, 2015), the Court affirmed convictions for murder for hire in violation of 18 U.S.C. § 1958. The Court rejected the argument that the statements by a third person – the wife of the hit-man-to-be – to the defendant in a recorded conversation should have been excluded as hearsay. The Court rejected the argument that statements by a person other than a defendant in a recorded conversation must be excluded as hearsay merely because those remarks occurred outside the courtroom. The Court explained that the wife’s statements were either non-assertive statements that are incapable of being true or false, or statements that were indisputably false. The statements were offered to show the effect they had on the defendant, and to provide context for his statements. As to one statement that was arguably offered for its truth, the defendant failed to seek a limiting instruction. The Court also rejected the argument that the wife of the hit-man-to-be should not have been permitted to give lay opinion testimony about her understanding of the substance of her conversation with the defendant. The Court noted that she was a participant in the conversation, and her testimony was helpful to the jury in clarifying a back-and-forth dialogue that contained abbreviated and unfinished sentences, and ambiguous references to events. The Court recognized that several times during cross-examination of the defendant, the prosecutor improperly asked whether other witnesses were lying. However, these “were-they-lying” questions did not prejudice the defendant, light of the substantial evidence of his guilt. Nonetheless, the court urged the United States Attorney’s offices in the Circuit “to do a better job of training their attorneys on this point.”