First Circuit focuses on relevance tests to assess the admission of out-of-court statements offered for a non-hearsay purpose; ultimately the error was harmless, in United States v. Benitez-Avila, __ F.3d __ (1st Cir. June 9, 2009) (No. 08-1463).
Trial counsel often want to call the investigator to lay the groundwork on how the investigation was started, how it progressed, and how it lead to the accused.
There is a basic rule that evidence that is hearsay for one purpose may still be admissible for another non-hearsay purpose. However, the non-hearsay purpose must also be closely examined for relevance and Mil. R. Evid. 403 purposes. In Benitez-Avila the hearsay nature of the admitted testimony was easily dealt with under Fed. R. Evid. 801. The court then went on to find error under Fed. R. Evid. 403.
The proposition that hearsay does not include statements showing context or background and not received for the truth of what they said should not be understood to mean that any kind of statement, no matter how prejudicial, may be introduced if it shows what might loosely be described as context or background. First, the aspects of ‘context’ or ‘background’ for which the evidence is offered must be relevant. And even if it is relevant its probative value in relation to the nonhearsay purpose must not be ‘substantially outweighed by the danger of unfair prejudice’.
The court went on to give an explicit warning:
Presentation of this type of evidence was often part of:
“[Prosecutors in] an effort to make the evidence of defendants’ guilt more lively and to captivate the jurors with the drama of the hunt for the solution to the crime, will often organize the presentation of the evidence of guilt in the form of a narrative of the investigation. We do not suggest that prosecutors are prohibited from organizing the legitimate evidence in a lively, appealing manner. But it does not follow that, by choosing a more seductive narrative structure for the presentation of the evidence of guilt, prosecutors expand the scope of the relevant legitimate evidence, so as to convert prejudicial and otherwise inadmissible evidence into admissible evidence.”