The Hearsay Trojan Horse: Out-of-Court Statements Offered to Demonstrate a 'Course Of Conduct'

By Bruce P. Merenstein
Special to the Legal

Trial lawyers know that when they want to introduce an out-of-court statement and no obvious exception to the rule against hearsay applies, they always have a fallback position: contend that the statement is not sought to be admitted to prove the truth of the matter asserted. If this argument is successful, the statement will be admitted and the jury will hear it (and possibly even believe it is true), accomplishing much of the trial lawyer's goal in offering the statement in the first place.

But in the real world of jury trials, what does it mean to admit a statement for some other purpose than to demonstrate that the facts asserted in the statement are true?

Consider a recent Pennsylvania Superior Court decision, Commonwealth v. Estepp, involving a conviction for drug possession. On appeal, the defendant contended that the trial court improperly allowed a police officer to testify at trial that a confidential informant had told the police "that a 50-year-old white male named 'Vern' sold prescription drugs out of his residence on 2828 Agate Street." The defendant happened to be a 50-year-old white male whose first name was Vernon and who was arrested at 2828 Agate Street. What possible purpose could there have been for allowing the police officer to offer testimony about an out-of-court statement that directly implicated the defendant, other than to bolster the prosecution’s case against the defendant?

According to the commonwealth, the purpose was solely to explain the officer's "course of conduct." Relying on longstanding Pennsylvania precedent, the Superior Court agreed that this was a proper purpose, holding that the trial court’s cautionary instruction to the jury that the testimony was being admitted only "to help explain why he did what he did" was sufficient to ensure that the out-of-court statement would not be considered for its truth.

Yet, the police officer must have believed the out-of-court statement was true, for if he did not, he would not have pursued his "course of conduct" in reliance on the statement. Moreover, the point of informing the jury of the facts that led the officer to take the steps he did was to make the final step in the course of conduct -- the arrest of the defendant -- appear reasonable. If, for example, the officer arrested the defendant because of a dream he had in which the defendant was selling drugs at 2828 Agate Street, the commonwealth undoubtedly would not elicit this testimony from the police officer.

So, in the end, the jury plainly understood that both the commonwealth and the police officer (and perhaps even the trial court) believed that the out-of-court statement was true, for, if it were not, the officer would not have undertaken a course of conduct in reliance on it and the commonwealth would not have asked the officer about it.

Of course, even if an out-of-court statement is admissible because it (purportedly) is not being offered for the truth of its contents, a trial court has the discretion to exclude it under Rule 403, if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

In reality, however, a court willing to invoke the "course of conduct" excuse for admitting blatant hearsay is unlikely to turn around and exclude the same evidence because of its prejudicial or misleading nature.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.