Friday, October 31, 2008


As I noted in an earlier post, every state and the federal system have rules of evidence that bar the use of what’s called “hearsay.” Rule 801(c) of the Federal Rules of Evidence defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

As I also explained in that earlier post, courts bar the use of hearsay – unless it falls within one of a few exceptions to the rule barring its use – because it’s presumptively unreliable.

As I noted there, allowing hearsay as a general matter would mean John Doe could take the stand and say he’d heard that the defendant – Jane Smith – had committed all kinds of crimes. It then becomes difficult for Jane or her attorney to rebut what John Doe had told the jury; they can’t cross-examine the person who allegedly said these things about Jane. So aside from its inherent unreliability, hearsay can deny the party against whom it is introduced the right to confront witnesses against them, a right guaranteed under the U.S. Constitution in criminal constitution.

Sometimes, though, a record or other item that seems to be hearsay is, in fact, not. That’s what this post is about. It comes from a decision by the Washington Court of Appeals: State v. Nordquist, 2008 WL 642615 (2008). Here are the facts in the case:
Scott Nordquist possessed a check drawn on Jodi Hamer's checking account from Fibre Federal Credit Union. On July 11, 2006, he walked into the credit union and presented the check for payment, with two pieces of identification, to credit union employee Kendra Thompson. Thompson took the check . . ., entered the check's information into the credit union's computer, and received an electronic bank memo alert on her computer that `this particular series of check numbers may have been stolen and to use caution when verifying the signature.”

Thompson excused herself . . . to compare the signature on the check with Hamer's signatures on past checks and her account card. Unable to match the signature on Nordquist's check with the signatures on Hamer's account, Thompson contacted her supervisor, who called the Longview Police Department. Meanwhile, Nordquist waited for about 15 minutes, until two police officers arrived.

After verifying Nordquist's identity, the officers took him to a room at the credit union, where they conducted an investigation. Nordquist told the officers that `he received the check from a girl named Amy.’ But after Officer Jennifer Jolly continued to question Nordquist about how he had obtained the check, he finally responded, `[W]ell, now that you put it that way, it doesn't make any sense.’ The officers arrested Nordquist for forgery.
State v. Nordquist, supra.

Nordquist was tried for, and convicted of, forgery. He appealed his conviction, arguing in part that the
trial court abused its discretion when, over his objection, it allowed the following testimony from Thompson: `There was a memo stating that this particular series of check numbers may have been stolen and to use caution when verifying the signature.’ Nordquist argues that the memo's statement was inadmissible hearsay evidence under [Washington Rule of Evidence] 801(c).
State v. Nordquist, supra.

The Washington Court of Appeals began its analysis of Nordquist’s argument by noting that hearsay can “`be admitted if offered for purposes other than to prove the truth of the matter asserted.’” The court then found that
Thompson's testimony about the bank's computer alert conveyed her rationale for excusing herself from Nordquist, checking the account holder's signature against the signature on the check that Nordquist had presented, and then calling her manager. Thompson did not testify that the check Nordquist presented and that she examined was stolen. Nor did the State charge Nordquist with possessing stolen checks or stealing the checks. Thus, the bank memo did not serve to prove the truth of a matter asserted in Thompson's testimony.

On the contrary, . . . the trial court allowed Thompson's testimony as an explanation for her actions, not as substantive evidence that some checks from this account had been stolen. Thus, her bank memo testimony was not hearsay under [Washington Rule of Evidence] 801 and, therefore, not excludable. . . . Accordingly, we hold that the trial court did not abuse its discretion in admitting Thompson's testimony about the computer alert.
State v. Nordquist, supra. So, not-hearsay = no problem.

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