Evidence — hearsay

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United States Court of Appeals For the Seventh Circuit

Criminal

Evidence — hearsay

The trial court abused its discretion in denying the admission of statements as hearsay, when they were offered not for their truth, but to show that the defendant was lied to.

“In our case it is more likely that Stern would have reported Leonard-Allen’s out-of-court statements to show that they were untrue and that they misled him by hiding the real purpose for purchasing the CDs. This testimony falls outside the definition of hearsay, and the court abused its discretion by excluding it. That is so even though, in response to the government’s hearsay objection, Stern’s lawyer does not appear to have made an offer of proof pursuant to FED. R. EVID. 103(a)(2) showing that Stern’s responses would not have relayed Leonard-Allen’s out-of-court statements at all. The government has not argued that Stern forfeited his objection to the exclusion of this testimony by this omission, and therefore the government has forfeited any argument about forfeiture. Stern’s lawyer focused on the point that Leonard-Allen’s out-of-court statements would not have been hearsay because they would not have been introduced to prove the truth of the matter asserted. As we have said, we agree with that assessment.”

Affirmed in part, and Vacated in part.

12-3299 & 12-3663 U.S. v. Leonard-Allen

Appeals from the United States District Court for the Eastern District of Wisconsin, Randa, J., Wood, J.