United States v. Jackson
1996 U.S. App. LEXIS 16062, 88 F.3d 845, 44 Fed. R. Serv. 1425 (1996)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A question not intended by the declarant to be an assertion of fact is not a 'statement' under Federal Rule of Evidence 801(a) and therefore cannot be inadmissible hearsay. The burden is on the party opposing admission to show that an ambiguous utterance was intended as an assertion.
Facts:
- A man wearing an open-face ski mask and a blue jacket carjacked a victim at gunpoint with a chrome-colored snub-nose revolver at a Circle K convenience store.
- During the carjacking, a nearby eyewitness yelled, 'Kenny, don’t do it!'
- The carjacker, whom police later identified as Kenneth Cody Jackson, took money from the victim and fled in the stolen car.
- Following a police chase, Jackson abandoned the vehicle and fled on foot, discarding the blue jacket.
- Police recovered a snub-nose revolver and a ski mask from the car, and the blue jacket from the path of the foot chase.
- Inside the jacket, officers found a pager.
- While an officer was completing a report, the pager activated and displayed a telephone number.
- The officer called the number, and an unidentified female answered by asking, 'Is this Kenny?'
Procedural Posture:
- Kenneth Cody Jackson was charged with carjacking and related firearm offenses in a federal district court.
- At trial, the government introduced the statements 'Kenny, don't do it!' and 'Is this Kenny?' over Jackson's hearsay objections.
- The jury convicted Jackson on all charges.
- Jackson filed a motion for a new trial based on newly discovered evidence of ineffective assistance of counsel, which the district court denied.
- Jackson appealed his conviction to the United States Court of Appeals for the Tenth Circuit, arguing the trial court erred in admitting the two statements.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a question, such as 'Is this Kenny?', constitute an inadmissible hearsay 'statement' under Federal Rule of Evidence 801 when it is offered not as an assertion of fact but as circumstantial evidence to link a defendant to an object used in a crime?
Opinions:
Majority - Judge McKay
No. A question that is not intended as an assertion is not a 'statement' under Rule 801 and therefore is not hearsay. Federal Rule of Evidence 801(c) defines hearsay as a 'statement' offered to prove the truth of the matter asserted. Rule 801(a)(1) defines a 'statement' as an 'oral or written assertion.' Citing the advisory committee's notes, the court emphasized that 'nothing is an assertion unless intended to be one.' The question 'Is this Kenny?' cannot reasonably be construed as an intended assertion, either express or implied, that Kenneth Jackson was in possession of the pager. While the question may convey an implicit message, the critical inquiry is whether an assertion was intended by the declarant. The court found it hard to believe the declarant intended to assert that Jackson possessed the pager. Furthermore, Rule 801 places the burden on the party opposing admission to prove that an ambiguous utterance was intended as an assertion, a burden which Jackson failed to meet. The court also affirmed the admission of 'Kenny, don't do it!' as a valid excited utterance under Rule 803(2), noting it is a 'firmly rooted' hearsay exception that does not violate the Sixth Amendment's Confrontation Clause.
Analysis:
This decision clarifies the threshold definition of a 'statement' for hearsay purposes, narrowing its scope by focusing on the declarant's intent to assert a fact. It establishes that non-assertive utterances, particularly questions, are generally not hearsay, even if they carry strong implications that are useful as circumstantial evidence. This ruling provides prosecutors with a clear avenue for admitting such evidence to link a suspect to a crime without having to overcome a hearsay objection. It reinforces the principle that the hearsay rule is designed to exclude unreliable out-of-court assertions of fact, not all out-of-court utterances.
