Criminal Defense Lawyers

Blocking Hearsay in Counterfeiting Trials Using FRE 801-807

Blocking Hearsay in Counterfeiting Trials Using FRE 801-807

Hearsay can be a major issue in counterfeiting trials. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. It is generally inadmissible unless it falls under one of the exceptions in the Federal Rules of Evidence (FRE).

FRE 801-807 cover the rules around hearsay. FRE 801 defines hearsay and covers exclusions that are not considered hearsay. FRE 802 states that hearsay is not admissible unless allowed by a federal statute, the Federal Rules of Evidence, or other Supreme Court rules. FRE 803 and 804 list exceptions where hearsay is allowed regardless of the availability of the declarant. FRE 807 is the “residual exception” that allows hearsay not covered by the other exceptions if certain conditions are met.

Common Forms of Hearsay in Counterfeiting Cases

Some examples of hearsay that may come up in a counterfeiting trial include:

• Out-of-court statements by alleged co-conspirators
• Social media posts or messages related to the crime
• Statements from informants or witnesses not testifying at trial
• Records or documents not properly authenticated

The prosecution will often try to get these statements admitted using FRE 801(d)(2) (statements by a party opponent) or FRE 804(b)(3) (statements against interest). However, the rules impose requirements that must be met for these exceptions to apply.

Using FRE to Block Hearsay

There are several ways the defense can use the FRE to block hearsay in a counterfeiting trial:

Object on Hearsay Grounds

The first step is simply objecting to the admission of hearsay statements during trial. The burden then shifts to the prosecution to prove the statement falls under an exception.

Attack Co-Conspirator Statements

Under FRE 801(d)(2)(E), statements by a defendant’s co-conspirators made during and in furtherance of the conspiracy are exempted from the hearsay rule. However, the prosecution must first prove that a conspiracy involving the defendant and the declarant existed, and that the statement was made in furtherance of the conspiracy.

The defense should scrutinize the prosecution’s conspiracy evidence and object if it is insufficient to show the defendant knowingly participated in the conspiracy. For example, in U.S. v. Gewin, the appellate court ruled that statements from alleged co-conspirators were improperly admitted where there was insufficient independent evidence of the defendant’s involvement in the conspiracy.^[1]

Exclude “Statements Against Interest”

Under FRE 804(b)(3), statements against the declarant’s interest can be admitted if the declarant is unavailable to testify. However, such statements which also implicate the defendant are only admissible if corroborating circumstances clearly indicate their trustworthiness.

In the Supreme Court case Lilly v. Virginia, statements by an accomplice attempting to shift blame to the defendant were determined to be unreliable and should have been excluded under FRE 804(b)(3).^[2]

Object to Improper Authentication

Under FRE 901, documents, social media posts, and other records must be properly authenticated to be admissible. The proponent must provide evidence showing the item is what they claim it to be.

For example, in U.S. v. Jackson, printouts of the defendant’s social media posts were not properly authenticated where the prosecution failed to show how the posts were obtained or that the defendant actually created them. Without proper authentication, the printouts were inadmissible hearsay.^[3]

Invoke the Confrontation Clause

The Sixth Amendment’s Confrontation Clause gives the defendant the right to cross-examine witnesses against them. If hearsay statements are “testimonial” in nature and the declarant does not testify at trial, this right has likely been violated.

In Melendez-Diaz v. Massachusetts, the Supreme Court ruled that affidavits reporting the results of forensic tests were testimonial statements. Without testimony from the analysts who performed the tests, allowing the affidavits violated the defendant’s confrontation rights.^[4]

Using FRE 807 to Admit Residual Hearsay

While the defense aims to exclude hearsay, FRE 807 provides a possible avenue for the admission of hearsay statements in counterfeiting cases when other exceptions don’t apply. This “residual exception” permits hearsay evidence to be admitted if:

1. It has equivalent guarantees of trustworthiness as other hearsay exceptions;
2. It is evidence of a material fact;
3. It is more probative than other available evidence; and
4. Admitting it serves the interests of justice and the general purposes of the rules.

All of these conditions must be met, which still sets a high bar. But recent changes make FRE 807 more flexible in allowing hearsay on a case-by-case basis when reliability can be shown.^[5]

For example, corroborated social media posts may be admitted to show the defendant’s connection to counterfeit goods or other evidence. Or hearsay from an unavailable witness could be allowed if sufficiently trustworthy and probative. While the residual exception is still narrowly applied, FRE 807 provides another option for admitting hearsay in appropriate cases.

Conclusion

Hearsay poses challenges in counterfeiting and many types of criminal trials. Skillful use of the rules of evidence, including FRE 801-807, is key to both blocking improper hearsay and admitting reliable hearsay when appropriate. With hearsay often making the difference between conviction and acquittal, understanding these evidence rules is critical for any attorney involved in a counterfeiting case.

Citations

[1] U.S. v. Gewin, 471 F.3d 197 (D.C. Cir. 2006)

[2] Lilly v. Virginia, 527 U.S. 116 (1999)

[3] U.S. v. Jackson, 208 F.3d 633 (7th Cir. 2000)

[4] Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)

[5] https://casetext.com/statute/united-states-code/title-28-appendix/federal-rules-of-evidence/article-viii-hearsay/rule-807-residual-exception/analysis?citingPage=1&sort=relevance