Out-of-Court Accusations Offered for "Background": A Measured Response From the Federal Courts

The two most important exclusionary rules in the Federal Rules of Evidence are the hearsay rule (codified in Federal Rule of Evidence 801) and Federal Rule of Evidence 403.The hearsay rule excludes out-ofcourt statements when they are offered to prove that the information related in the statement is true.Rule 403 operates to exclude evidence when its probative value would be substantially outweighed by the prejudice, confusion or delay that would result were the evidence admitted.As Ms. Hervic notes in her Comment, Rule 403 has an interesting and complex relationship with the hearsay rule.The hearsay rule is purpose-specific in its exclusion; it operates only where the statement is offered to prove that the information related in the statement is true.When an out-of-court statement is offered for something other than its truth-a so called "not-for-truth purpose"-the hearsay rule is inapplicable.Upon appropriate objection, however, the trial court must balance the probative value and the prejudicial effect of the statement under Rule 403; the evidence will have to be excluded where it is not very probative for any not-for-truth purpose, and where there is a significant risk that the jury will use the statement improperly for its truth.Such a use would prejudice the opponent under the terms of Rule 403.The interrelationship between Rule 403 and the hearsay rule is brought into stark relief in a criminal case when the prosecution proffers out-of-court statements accusing the defendant of criminal activity.United States v.Evans is a recent example. 1 Thomas Rose was serving time and sought to cooperate with the authorities in order to get his sentence reduced.He told FBI agents that Evans was involved in drug trafficking.Thomas Rose then had his uncle, George, contact Evans, using Thomas's name as a reference.Eventually, George asked Evans to find some drugs for him, and Evans did so.At trial, Evans claimed entrapment.The government's first witness at trial was FBI agent Darnell.Darnell testified about the origins of the undercover operation, including 1. 216 F.3d 80 (D.C.Cir.2000).