Statements Not Offered for the Truth of the Matter Asserted

In general

• “Whether a statement is hearsay . . . will most often hinge on the purpose for which it is offered.”

Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)(quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998), cert. denied, 525 U.S. 897 (1998))(alteration in the original)

Townsend v. State, 33 N.E.3d 367, 370 (Ind. Ct. App. 2015), trans. denied(quoting Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)(quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998), cert. denied, 525 U.S. 897 (1998)))(alteration in the original)

See Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994)(citing Indianapolis Newspapers, Inc. v. Fields, 259 N.E.2d 651, 673 (Ind. 1970), cert. denied, 400 U.S. 930 (1970))(“Whether evidence of an extrajudicial utterance qualifies as hearsay depends upon the purpose for which it is offered.”)

See also Sylvester v. State, 698 N.E.2d 1126, 1129 n. 3 (Ind. 1998), reh’g denied(“The focus in a hearsay analysis is neither on who made the statement, nor on when the statement was made. Rather, the key is whether the statement is being offered to prove the truth of the matter asserted therein.”)

• [O]ut-of court statements that are offered for a purpose other than to prove the truth of the matter stated are not hearsay.

Patton v. State, 725 N.E.2d 462, 464 (Ind. Ct. App. 2000)

See Butler v. State, 951 N.E.2d 641, 645 (Ind. Ct. App. 2011)(citing Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999))(“A statement is not hearsay, though, if it is not offered to prove the truth of the matter asserted.”)

See also Anderson v. State, 718 N.E.2d 1101, 1102-03 (Ind. 1999)(citing Bufkin v. State, 700 N.E.2d 1147, 1150 (Ind. 1998))(“A statement is not hearsay if offered for another purpose.”)

Cf. Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied(quoting Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999))(“‘To run afoul of the hearsay rule the evidentiary purpose of the proffered statement must be the truth of the matter asserted.’”)

Impeachment

• A prior inconsistent statement may be used to impeach a witness. If used for that purpose, it is not hearsay because the statement is not used to prove the truth of the matter asserted.

Townsend v. State, 33 N.E.3d 367, 370 (Ind. Ct. App. 2015), trans. denied(citing Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000))

See Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010), reh’g denied(citing Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000))(“Rule 613 allows the use of a prior inconsistent statement to impeach a witness, and when so used, the statement is not hearsay.”)

See also Gray v. State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013)(citing Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010), reh’g denied)(“Indiana Evidence Rule 613 allows the use of a prior inconsistent statement to impeach a witness, and when used in this manner, the statement is not hearsay.”)

• In other words, the statement is used to establish that the witness previously made a statement contrary to his testimony, not necessarily that the prior inconsistent statement is substantively true.

Townsend v. State, 33 N.E.3d 367, 370 (Ind. Ct. App. 2015), trans. denied

• For information about impeaching witnesses with prior inconsistent statements, please review Impeachment.

Rehabilitation

• When prior statements are used to impeach and rehabilitate a witness they are not hearsay because they are not used to prove the truth of the matter asserted.

Birdsong v. State, 685 N.E.2d 42, 46 (Ind. 1997)(emphasis added)

Bassett v. State, 895 N.E.2d 1201, 1213 (Ind. 2008), cert. denied, 556 U.S. 1171 (2009)(quoting Birdsong v. State, 685 N.E.2d 42, 46 (Ind. 1997))

Moreland v. State, 701 N.E.2d 288, 292 (Ind. Ct. App. 1998)(citing Birdsong v. State, 685 N.E.2d 42, 46 (Ind. 1997))

• For information about rehabilitating witnesses with prior consistent statements, please review Rehabilitation.

Effect on the listener

• An out-of-court statement that is offered to show its effect on the hearer's state of mind is not hearsay.

Whited v. State, 645 N.E.2d 1138, 1140 (Ind. Ct. App. 1995)(citing United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993))

• We conclude that [the victim’s] statements were not hearsay and would properly be admitted to show their effect on [the listener] and to explain his conduct.

Allen v. State, 686 N.E.2d 760, 775 (Ind. 1997), reh’g denied, cert. denied, 525 U.S. 1073 (1999)

• Statements made by a victim which are offered to show the reasons why a person acted in the way he or she did are not hearsay.

Sylvester v. State, 698 N.E.2d 1126, 1129 (Ind. 1998), reh’g denied

E.g., Sylvester v. State, 698 N.E.2d 1126, 1129 (Ind. 1998), reh’g denied(emphasis added)(“Defendant wanted to introduce the statements in order to show the circumstances which led to his “sudden heat.” Thus, the statements were not being offered to show the truth of the assertions contained therein, and were not hearsay. Defendant was not trying to prove the truth of [the victim’s] remarks but rather was attempting to show the effects of those remarks on his own behavior.”)

• The State relies on the doctrine that police questions and comments in an interview may be designed to elicit responses from the defendant and if so, are “not offered as proof of the facts asserted therein.”

Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999)(quoting Strong v. State, 538 N.E.2d 924, 928 (Ind. 1989))

Statements providing context for other admissible statements

• “Statements providing context for other admissible statements are not hearsay because they are not offered for their truth.”

Williams v. State, 930 N.E.2d 602, 609 (Ind. Ct. App. 2010), trans. denied(quoting United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006), cert. denied, 549 U.S. 1149 (2007))

Mack v. State, 23 N.E.3d 742, 753 (Ind. Ct. App. 2014), trans. denied(quoting Williams v. State, 930 N.E.2d 602, 609 (Ind. Ct. App. 2010), trans. denied(quoting United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006), cert. denied, 549 U.S. 1149 (2007)))

E.g., Gilbert v. State, 954 N.E.2d 515, 518-19 (Ind. Ct. App. 2011)(emphasis added)(citations to the record omitted)(“Officer Decker's testimony regarding Detective Wilkerson's statements was not hearsay, inasmuch as it was not offered for its substantive truth. More particularly, Officer Decker's testimony that Detective Wilkerson stated to [the defendant] that “he wanted some h[ea]d” was not offered to prove that Detective Wilkerson, in fact, wanted to receive oral sex. Rather, the statement was introduced to show that it was made, and, more importantly, provided context for [the defendant’s] response, which was to ask how much money they had.”)

Course-of-investigation testimony: In general

• An out-of-court statement introduced to explain why a particular course of action was taken during a criminal investigation is not hearsay because it is not offered to prove the truth of the matter asserted.

Goodson v. State, 747 N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied(citing Patton v. State, 725 N.E.2d 462, 464 (Ind. Ct. App. 2000))

Ballard v. State, 877 N.E.2d 860, 864 (Ind. Ct. App. 2007)(quoting Goodson v. State, 747 N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied)

See Clark v. State, 648 N.E.2d 1187, 1192 (Ind. Ct. App. 1995), reh’g denied, trans. denied(citing Holliday v. State, 601 N.E.2d 385, 387 (Ind. Ct. App. 1992), trans. denied)(“Out-of-court statements introduced primarily to explain why a particular course of action was taken during a criminal investigation are not offered for the truth of the matter asserted and are not hearsay statements.”)

See also Cockrell v. State, 743 N.E.2d 799, 805 (Ind. Ct. App. 2001)(citing Clark v. State, 728 N.E.2d 880, 885 (Ind. Ct. App. 2000), trans. denied, overruled on other grounds, D’Paffo v. State, 778 N.E.2d 798, 803 (Ind. 2002))(“[A]n out-of-court statement may be admissible to show the investigative steps that a police officer took.”)

• Out-of-court statements made to law enforcement are non-hearsay if introduced primarily to explain why the investigation proceeded as it did.

Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)(emphasis added)

• Even so, we require a reasonable level of assurance that such testimony was neither offered by the proponent nor received by the trier of fact as evidence of the truth of the third party's statement.

Goodson v. State, 747 N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied(citing Owens v. State, 659 N.E.2d 466, 476 (Ind. 1995), reh’g denied)

Ballard v. State, 877 N.E.2d 860, 864 (Ind. Ct. App. 2007)(quoting Goodson v. State, 747 N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied)

• “[T]hat assurance may arise from an immediate limiting instruction or from the sketchiness of the testimony itself.”

Goodson v. State, 747 N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied(quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 801.303 at 502 (2d ed. 1995))(alteration in the original)

Course-of-investigation testimony: Purpose

• Although course-of-investigation testimony may help prosecutors give the jury some context, it is often of little consequence to the ultimate determination of guilt or innocence.

Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)(citing Kindred v. State, 973 N.E.2d 1245, 1252 (Ind. Ct. App. 2012), trans. denied)

• The core issue at trial is, of course, what the defendant did (or did not do), not why the investigator did (or did not do) something.

Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)

• Thus, course-of-investigation testimony is excluded from hearsay only for a limited purpose: to “bridge gaps in the trial testimony that would otherwise substantially confuse or mislead the jury.”

Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)(quoting Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011), reh’g denied, reh’g en banc denied)

Course-of-investigation testimony: Judicial skepticism of course-of-investigation testimony

• This court, our supreme court, and federal courts frequently have been skeptical of attempts by the State to introduce police officer testimony relating out-of-court statements under the guise of “course-of-investigation” evidence.

Corbally v. State, 5 N.E.3d 463, 470 (Ind. Ct. App. 2014)

• “‘Statements offered to show background or the course of the investigation can easily violate a core constitutional right, are easily misused, and are usually no more than minimally relevant.’”

Corbally v. State, 5 N.E.3d 463, 470 (Ind. Ct. App. 2014)(quoting Kindred v. State, 973 N.E.2d 1245, 1255 (Ind. Ct. App. 2012), trans. denied(quoting Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011), reh’g denied, reh’g en banc denied))

• The possibility the jury may wonder why police pursued a particular path does not, without more, make course-of-investigation testimony relevant.

Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)(citing Kindred v. State, 973 N.E.2d 1245, 1252-53 (Ind. Ct. App. 2012), trans. denied)

• Indeed, such testimony is of little value absent a direct challenge to the legitimacy of the investigation.

Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)

• Our concern is the danger of prejudice where reliance on the course-of-investigation exclusion is misplaced.

Blount v. State, 22 N.E.3d 559, 566 (Ind. 2014)

• There is a risk the jury will rely upon the out-of-court assertion as substantive evidence of guilt—rather than for the limited purpose of explaining police investigation—and the defendant will have no chance to challenge that evidence through cross-examination.

Blount v. State, 22 N.E.3d 559, 566 (Ind. 2014)(citing Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011), reh’g denied, reh’g en banc denied)

• The danger of undue prejudice is particularly high where the out-of-court assertion implicates the defendant in a crime similar to the one with which he or she is charged.

Blount v. State, 22 N.E.3d 559, 566 (Ind. 2014)

• And this danger is even higher where the out-of-court declarant directly accuses the defendant of committing the instant crime.

Blount v. State, 22 N.E.3d 559, 566 (Ind. 2014)

Course-of-investigation testimony: Impact of judicial skepticism on the use of course-of-investigation testimony

• For this reason, we must pay careful attention to the purpose for which an out-of-court statement is offered. The ultimate inquiry is: Was the out-of-court statement used primarily to show the truth of its content, constituting inadmissible hearsay, or merely to explain subsequent police action, excluded from hearsay? To answer this question, we turn to the three-part test we articulated in Craig v. State, 630 N.E.2d 207, 211 (Ind.1994).

Blount v. State, 22 N.E.3d 559, 566 (Ind. 2014)

See Ealy v. State, 685 N.E.2d 1047, 1056 (Ind. 1997)(“In Craig, this Court set forth the analysis to determine whether out-of-court statements made to police officers during their investigation are admissible as non-hearsay evidence.”)

Course-of-investigation testimony: Three-part test to determine admissibility

• After a proper hearsay objection has been made, the following analytical questions are essential:

1. Does the testimony or written evidence describe an out-of-court statement asserting a fact susceptible of being true or false?

If the statement contains no such assertion, it cannot be hearsay and the objection should be overruled. If the out-of-court statement does contain an assertion of fact, then the Court should consider the following before ruling:

2. What is the evidentiary purpose of the proffered statement?

. . . If the evidentiary purpose is to prove a fact asserted, and such purpose is not approved under Evid. R. 801(d), then the hearsay objection should be sustained, unless the statement fits an exception to the hearsay rule.

If the proponent of the statement urges a purpose other than to prove a fact which is asserted, then the Court should consider the following before ruling:

3. Is the fact to be proved under the suggested purpose for the statement relevant to some issue in the case, and does any danger of prejudice outweigh its probative value?

. . . If the fact sought to be proved under the suggested non-hearsay purpose is not relevant, or it is relevant but its danger of unfair prejudice substantially outweighs its probative value, the hearsay objection should be sustained.

Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994)

Blount v. State, 22 N.E.2d 559, 566-67 (Ind. 2014)

Other examples from case law

• A few seconds after hearing a gunshot, [the witness] heard a male individual angrily say, “I told you not to fuck with me, mother fucker.” . . . [W]e find that the statement was not hearsay at all because it was not offered to prove the truth of the matter asserted. The statement was not offered as circumstantial evidence to prove that [the victim] had been “fuck[ing]” with Defendant or that Defendant told [the victim] not to do that. Rather, it was offered to prove that the shooting was intentional, not accidental.

Monegan v. State, 721 N.E.2d 243, 253-54 (Ind. 1999)(citation to the record omitted)

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