New York Federal Criminal Practice Blog
August 5, 2010

Second Circuit Reverses Due to Admission of Prejudicial Hearsay

Prejudicial hearsay is hardly ever introduced simply for its mere “context,” and the Second Circuit called out the government on a particularly egregious example of that in United States v. Gomez, No. 08-3829-cr (2d Cir., August 4, 2010).  

The defendant was charged with ecstasy distribution.  At his trial, the government elicited key testimony from a Detective Ryan, who had arrested Gomez’ co-conspirator Rivas, that Rivas had identified Gomez as his supplier.  The communication was by inference:  Ryan testified that he directed Rivas to call his supplier and Rivas called Gomez.  Rivas did not testify.  The government had argued that “the evidence was admissible for the proper, non-hearsay purpose of showing context, in that it explained how Ryan came to place a call to Gomez.”  Gomez countered that the government had elicited from Detective Ryan inadmissible prejudicial hearsay testimony, which communicated to the jury that Rivas identified Gomez as his supplier.

The Circuit agreed, and did not find the error harmless, in part because the error also implicated the Confrontation Clause “the very concerns [of which] … are part and parcel of our harmless error analysis.”

The government continued insistence at the appellate level that the evidence was elicited for a contextual rather than prejudicial purpose so “puzzled and dismayed” the Court, that it added in a footnote:

[It bears repeating that:] The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

(quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

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