United States v. Darwin Montana
53 Fed. R. Serv. 897, 199 F.3d 947, 1999 U.S. App. LEXIS 32858 (1999)
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Rule of Law:
An out-of-court statement that constitutes a 'verbal act,' such as a demand or an offer, is not inadmissible hearsay because its legal significance lies in the fact that the statement was made, not in its truthfulness.
Facts:
- James Dodd committed a bank robbery while Montana drove the getaway car.
- At Montana's trial, Dodd testified as a defense witness, claiming that Montana had not known about the robbery plan.
- During the trial, Dodd gave Montana's lawyer a note to pass along to Montana's mother.
- After reading the note, Montana's mother informed the lawyer that it contained a demand for money in exchange for Dodd's favorable testimony.
- The following morning, a deputy U.S. marshal overheard Dodd tell Montana to tell his father that 'it's going to be $10,000' for the testimony.
Procedural Posture:
- Montana was prosecuted for bank robbery and related offenses in a federal district court (the trial court).
- During the trial, the judge allowed a deputy U.S. marshal to testify about an out-of-court statement he overheard.
- A jury found Montana guilty.
- Montana, as the appellant, appealed his conviction to the U.S. Court of Appeals for the Seventh Circuit, arguing that the marshal's testimony was inadmissible hearsay and that he had received ineffective assistance of counsel.
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Issue:
Is an out-of-court statement that constitutes a demand for payment, rather than an assertion of fact, inadmissible hearsay?
Opinions:
Majority - Posner, Chief Judge
No. An out-of-court statement that is a 'verbal act,' such as a demand, is not inadmissible hearsay because it is not offered to prove the truth of the matter asserted. The court distinguished between performative utterances, which commit the speaker to a course of action (like a promise, offer, or demand), and illocutionary utterances, which convey information and are judged by their truth value. Performative utterances are not hearsay because they do not make truth claims; their significance lies in the fact that they were said. Here, the marshal overheard a demand, not a statement of fact. If the statement had been, 'your father has promised me $10,000,' it would be hearsay because its value would depend on its truthfulness. However, the statement 'it's going to be $10,000' was a demand, and the only credibility issue was whether the marshal was accurately reporting it, which could be tested through cross-examination.
Analysis:
This decision provides a clear and practical illustration of the 'verbal act' doctrine, distinguishing legally operative language from statements offered for their truth. It solidifies the principle that the hearsay rule's purpose is to prevent the admission of unreliable assertions of fact that cannot be cross-examined. By classifying a demand for a bribe as a non-hearsay verbal act, the court clarifies that words constituting a crime or a legally significant action are admissible to prove the act occurred. This reasoning helps litigants and courts delineate the boundary between inadmissible hearsay and admissible statements whose very utterance has legal significance.
