In United States v. Cummings, the Second Circuit reversed a conviction because of prejudicial double hearsay.  Cummings was charged with several offenses regarding drugs, firearms and two counts of killing a person during and relation to a conspiracy to distribute cocaine base.  During the trial the government sought to offer evidence that Cummings threatened a cooperating witness because of his cooperation by offering the testimony of that person.  That person was going to testify to the defendant saying that he was going to kill the witness because of the witnesses’ cooperation.  Cummings’ counsel opposed, arguing that the probative value of that evidence was substantially outweighed the prejudicial effect under rule 403 of the Federal Rules of Evidence.  The Trial Court allowed the evidence in subject to a limiting instruction.

During the trial it came out that the witness did NOT actually hear Cummings actually say that he was going to “shoot [the witness] in the face.”  The witness never alleged that Cummings that to him directly, rather he said that to people around the witness.  Defense counsel did not re-raise the request for the limiting instruction and the court did not grant it.  There was no 404(b) instruction either (a 404(b) instruction means in this case that the jury wouldn’t have been allowed to use this threat as evidence that he committed the crimes he was charged with).  The prosecutor said at final argument that Cummings made those threats because he knew the evidence would be damaging to him at trial and that testimony, “was in fact completely devastating proof of [Cummings’] crimes.”

The Jury found Cummings guilty of all counts.

With regard to the hearsay evidence, the court held that the statements of the witness that Cummings didn’t say anything to him directly meant that it was less likely that the witness heard Cummings make the death thread.  So that means that other people heard Cummings say what he said and then told it to the witness.  That created a potential “hearsay within hearsay” problem; the first hearsay issue is when Cummings allegedly told some unknown person that he was going to “shoot [the witness] in the face.”  Then the second statement is when the unknown person told the statement to the witness who testified.

(Remember, under Federal Rule of Evidence 801, Hearsay is an Out of Court Statement offered in court for the truth of the matter asserted).

(A note by Jeremy:  Okay, so when you’re dealing with two levels of hearsay then you have to have either an exception or that it’s not actually hearsay for each one.  You have to deal with each one on its own individually)

The court noted that although the first statement could be deemed “Not Hearsay,” because it is not offered for the truth of the matter asserted but rather for consciousness of guilt OR it could be deemed “Not Hearsay” because it is a statement by a party opponent (as in the case is U.S. v. Cummings and the U.S. is offering the statement).  But even if that clears Cummings stating it to the unknown person, it doesn’t clear the unknown person saying it to the witness.  The government didn’t call the unknown person and the court indicated that the only way that the statement gets in is if it was admitted for its truth.  If it wasn’t admitted for its truth then it wouldn’t be probative of his consciousness of guilt.  So since the second statement from the unknown person to the witness is hearsay without an exception, then it is inadmissible.

The court then weighed whether the admission was harmless error.  Although Cummings did not ask for a limiting instruction, the court determined that the death threat testimony created an undue risk that the jury construed the thread as evidence of Cummings’s murderous propensity.  Second the court did not provide a limiting instruction to the jury about the limited permissible purpose of the death threat testimony.  Third the government’s description of the death threat testimony went beyond the purpose of its admission because of the government’s final argument.  Finally, the hearsay nature of the death threat testimony unfairly prejudiced Cummings and may have affected the jury’s understanding of his testimony.

The second circuit reversed, 15-2035

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