Gun-Possession Conviction Reversed Because Police Officers Testified To Hearsay Contents of 911 Call Identifying Suspect Resembling Defendant, Going Beyond Permissible “Background” EvidenceSeptember 27, 2013 – Articles White Collar Defense & Compliance Blog
While much of the jurisprudence addressing the admissibility of out-of-court statements in criminal cases turns on abstract notions of the meaning of the Sixth Amendment’s Confrontation Clause (seea recent example here), defense counsel can sometimes block or successfully appeal the admission of testimony simply because the applicable rules of evidence bar its admission, without reaching questions of constitutional import.
An example of the still-useful role played by the prosaic Federal Rules of Evidence is provided byUnited States v. Nelson, 2013 WL 4007652 (6th Cir., Aug. 7, 2013). Nelson, charged as a felon in possession of a firearm, was arrested by local police responding to an anonymous 911 call describing an armed man fitting Nelson’s description. A series of officers engaged with Nelson on the day in question, some first approaching him and others subsequently chasing him and recovering a pistol found in the area of the chase, but no officer actually witnessed Nelson possessing the weapon and he denied it was his. Over objection, the government was permitted at trial to have no fewer than five police officers describe their dispatcher’s recapitulation of the detailed 911 call, detailing the reported manner of dress, race, hair style and other characteristics matched by Nelson and, most importantly in an offense hinged on gun possession, claiming that the described individual possessed a weapon.
The government’s proffered rationale for having the officers’ recount the multiple-hearsay statement – the first level of hearsay being the caller’s statements to dispatch, and the second the dispatcher’s retelling of the statement to officers on the scene – was to establish the background for the events surrounding the arrest. Under Federal Rule of Evidence 801(c)(2), an out-of-court statement is not “hearsay” unless offered to prove the truth of the matters asserted, and so a 911 call, or its recapitulation by a dispatcher, may be relevant to explain why an officer reacted the way he/she did in a particular circumstance. Given that Nelson was African-American and one or more of the officers was presumably not African-American, the prosecution may have desired to provide the jury with a race-neutral explanation for why a bevy of officers descended on a suspect who was outwardly doing nothing to violate the law.
But, the Sixth Circuit held, the prosecution went overboard. “[T]o the extent the jury needed to hear about what prompted the police action, a less-detailed statement indicating that the police received a 911 call, without detailing the caller’s description, would have avoided the prejudice problem [of using the 911 caller’s description to provide the key evidence that Nelson indeed had possessed a weapon] while still ensuring that the jury was given the minimal background information needed to understand why the officers behaved the way they did.” Officers could have permissibly testified that they were responding to an anonymous complaint of a person believed to be dangerous in order to provide context for their actions.
The court of appeals acknowledged that in more complex cases, jurors could become confused about why a particular individual was targeted by law enforcement, suggesting that more leeway might be afforded for background evidence in such cases. But this was not that case.
Since so many reported decisions as to non-hearsay statements root their conclusions with reference to the “background information” exception drawn from Rule 801(c)(2), and since that exception may allow very prejudicial information before the jury, the Nelson opinion may be useful as a counterpoint in fixing limits to that ambiguously-defined hearsay exception.