The defendant was charged after having been filmed by an informant selling methamphetamine. The informant, who is identified as “B.B.”, passed away before trial. Nevertheless, the government played B.B.’s videos of the transactions to the jury, although recordings of statements from B.B. to law enforcement personnel were excluded. The defendant was found guilty and challenged on appeal the admission of the redacted videotapes, arguing that they were hearsay, and their admission violated his rights under the Confrontation Clause.
The Sixth Circuit rejected this contention and affirmed the convictions in United States v. Harrison, No. 21-6146 (6th Circuit, December 1, 2022).
When a witness cannot testify at trial and has not been cross-examined, the confrontation clause prohibits entry of the witness’s statements that are: (1) testimonial, and (2) hearsay. United States v. Gibbs, 506 F.3d 479, 486 (6th Cir. 2007). A statement is testimonial when its purpose is to be used against the defendant.
Federal Rule of Evidence 801(c) defines hearsay to be a statement “offered in evidence to prove the truth of the matter asserted.” The key, however, as explained by the Sixth Circuit is that “the matter asserted” refers to or means “the matter asserted by the statement, not the matter asserted by the government. United States v. King, 865 F.3d 848, 850-51 (6th Cir 2017).
This is a good way to understand whether or not a statement is in fact “hearsay”: is the statement being offered toward proving its truth? If the statement is merely being offered in support of the position of the party offering it but not because it is true or not, the statement is not hearsay.