In a criminal matter involving drugs being smuggled from Mexico into the U.S., the defendant was precluded from testifying about the “favors” a friend in Mexico had asked of him. Defendant’s contention was that in granting his friends “favors,” he had been manipulated into smuggling drugs across the border. One “favor” was a request defendant drive someone to the DMV in San Ysidro, about eight miles north of the border. Another “favor” was to drive someone to a tire shop in San Diego. Government lawyers objected to the proffered testimony as hearsay and the federal district court sustained the objection. In affirming, the Ninth Circuit noted that as a general rule, a party is prohibited from introducing a statement made by an out-of-court declarant when it is offered to at trial to prove the truth of the matter asserted. Here, defendant argued he offered the testimony, not for its truth, but to show its effect on the listener. The appeals court, however, found the proffered questions fell within the realm of hearsay, even though sometimes questions may constitute non-hearsay. The court stated: “[Defendant] offered the questions for this intended implied message to show it was [the friend] who was calling the shots and who unknowingly set him up on the drug importation scheme. Thus, [defendant] offered the statements for the truth of the defense asserted.” (United States v. Torres (Ninth Cir.; July 22, 2015) 794 F.3d 1053.) #Mellorlawfirm, #MarkAMellor, #Evidence
