United States v. Barrett, 539 F.2d 244 

U.S. Court of Appeals

1976

Chapter

6

Title

A Contemporary Approach

Page

171

Topic

Hearsay

Quick Notes

o    The District Court did not allow Barrett to introduce hearsay testimony to show inconsistent statements and contradiction in prior testimony.  Rule 801(d)(1)(A) provides an exception for statements that are inconsistent with prior testimony.

Rule 801 (d) Statements which are not hearsay.

o    A statement is not hearsay if

o    (1) Prior statement by witness.

o    The declarant testifies at the trial or hearing and

o    is subject to cross-examination concerning the statement, and

o    the statement is

o    (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o    Whether hearsay statements can be admitted into evidence if they show contradiction in prior testimony?  You Bet.

Procedure

District

o         United States District Court for the District of Massachusetts that convicted Barrett of interstate transportation of stolen postage stamps.

Appellant

o         Vacated and remanded.

Prior Inconsistent Statement

o         To be received as a prior inconsistent statement, the contradiction need not be "in plain terms.

o         It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict."

Facts

Discussion

Key Phrases

Rules

Pl Barrett (Appellant)

Df United States (Appellee)

Party Description

o          Arthur Barrett appeals from his conviction after a jury trial for crimes arising from the theft and sale of a collection of postage stamps.

o         Barrett and seven others were charged in a three-count indictment with the interstate transportation of stolen postage stamps,

o         Of the eight indicted, Barrett alone went to trial

District Courts Excluded Testimony

o         Excluded of the testimony of two defense remaining witnesses.

o    Delaney

o    Kelley

Court - District Court Erred

o         Exclusions were in error.

Delaney conversation with Buzzy Adams Government Objected

o         Delaney stated that he met with Buzzy Adams in or around November, in a Boston area restaurant.

o         He was then asked to relate their conversation.

o         The Government objected.

Adams said Barrett was not involved

o         Barrett offered to prove that "Adams said that he had heard that Barrett had been indicted, or had gotten into trouble on this matter, and that it was too bad because he, Buzzy, knew that Barrett was not involved."

Kelly overheard Adams that Buckey (Barrett) did not have anything to do with it.

o         Kelley, a waitress, was prepared to testify that, while waiting on Adams and Delaney at the same restaurant, she overheard Adams say "it was a shame that Bucky got arrested on this matter because he (Adams) "knew that Bucky didn't have anything to do with it."

Barrett Concedes this evidence was hearsay

o         Fed. R. Evid. 801(d)(1), and so inadmissible to prove the truth of the matter asserted.

Barrett Argues Prior inconsistent statement

o         It was admissible as a prior inconsistent statement to impeach Adams' credibility.

o         Adams had earlier testified that Barrett admitted to him shortly after his arrest that he had been involved in the stamp transaction.

Barrett contends subsequent statement to Delaney was contradictory

o         Barrett contends that Adams' subsequent statement to Delaney in November, 1974, that Barrett was not involved, was contradictory and so admissible to impeach his credibility.

The Government now argues,

o         Adams' purported opinion was too vague and unsupported to be useful.

Court Statement to Delaney was clearly inconsistent

o         The statement to Delaney, therefore, made supposedly in November, 1974, was clearly inconsistent.

Prior Inconsistent Statement

o         To be received as a prior inconsistent statement, the contradiction need not be "in plain terms.

o         It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict."

Adams believe Bucky was not involved is immaterial

o         Furthermore, the fact that Adams' belief that Bucky was not involved might be called an "opinion" is immaterial.

Important Point - Incompatibility

o         The important point is the clear incompatibility between Adams' direct testimony and the alleged statement.

Vacated and Remanded.

Rules

Rule 801 (d) Statements which are not hearsay.

o    A statement is not hearsay if

o    (1) Prior statement by witness.

o    The declarant testifies at the trial or hearing and

o    is subject to cross-examination concerning the statement, and

o    the statement is

o    (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

Class Notes