Is this tv show example of hearsay actually hearsay?

Question

In the Netflix show The Lincoln Lawyer, season 3, episode 7, there is a scene in which a witness is testifying in court as a witness for the defence.

Background

For those not familiar with the show, the following is a simplified summary of the state of affairs (as far as the viewer knows them) at the time the testimony is given:

An escort (Glory Days) is coerced by a DEA agent (De Marco) into planting a gun in the house of a Mexican drug cartel associate (Moya). Moya is arrested on drug charges with gun enhancement and sentenced to life imprisonment. He discovers that the gun was planted by Glory Days and contacts a lawyer (Funaro) to file a habeas petition to have him released. Glory Days and another escort (Trina Trixxx) are both subpoenaed for this petition. A week after being served, Glory Days is murdered. The court scene takes place during the subsequent trial against Julian La Cosse, who was (falsely) accused of her murder.

The immediate context of the court scene is that the defence attorney (Haller) is trying to get this whole chain of events introduced into the case, since he believes De Marco to be the real killer. The witness on the stand is the other lawyer, Funaro.

The relevant scene

In the scene, Haller asks Funaro what led to him having Glory Days subpoenaed. Funaro relates that Moya contacted him to obtain a habeas petition as he believed the gun that got him sent away for life was planted; that his investigation concluded that the two escorts had been present in Moya’s residence prior to the arrest; that he tracked down Trina Trixxx and met with her; and that during this meeting Trixxx denied having planted the gun herself, but stated that Glory Days had told her she had done it, on De Marco’s orders.

During this scene, the prosecutor objects three times that the witness statement is hearsay. The objections come when Funaro states that:

1. Moya told him the gun wasn’t his
2. Trixxx denied having planted the gun
3. Trixxx said Glory Days had said she’d done it

All three objections are sustained by the judge; after the third one, Haller even agrees (in sidebar) that it is hearsay.

My issue is that I don’t really see how it is.

The actual question

I am obviously not a lawyer, but I have always understood hearsay to essentially correspond to the very first sentence in the Wikipedia article Hearsay or the Federal Rules of Evidence, Rule 801(c) (my emphasis):

“Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

There are many cases in court room dramas where we hear witnesses say things like, “She told me that X had happened, so I called Y to ask if she was okay” with no objections about hearsay (indeed, I’m sure there are other examples of it even in The Lincoln Lawyer). The recited out-of-court statement is not presented to ascertain its veracity, but to explain the witness’s own actions, so presumably this does not count as hearsay.

In this instance, Funaro is obviously reciting out-of-court statements (1), but the purpose is just as obviously not to prove the veracity of those statements (2). The statements are provided to explain why Funaro subpoenaed Glory Days; in other words, they are used as explanations of Funaro’s own actions. Establishing the veracity of the statements themselves would be the purpose of the subpoenas and the habeas petition, a matter to be settled in a separate case. The defence’s plan is to next call Trixxx and De Marco as witnesses so they can testify as to the veracity of their own statements.

I understand that court room dramas often play fast and loose with legal terms and how courts actually work in order to make ‘better tv’, but it still struck me as odd that either 801(c)(2) was completely ignored for this scene, or the judge and both counsellors considered that 801(c)(2) was met.

In a real-world criminal court case in Los Angeles, would the statements described above be likely to be considered inadmissible as hearsay by counsel/judges? If so, why?

Answer 1

the purpose is just as obviously not to prove the veracity of those statements

Not at all obvious. All of the persons who allegedly made the statements were not in court testifying.

The underlying case is one to prove that someone was framed. Moya is available to testify himself, as is TrixxX. The veracity of Moya's statement is central to the underlying claim, as is #3. The statement in #2 is closely related to the central issue in the underlying claim.

Judges have a great deal of discretion in determining what the purpose of a question is, in the larger context of the case, and will often exclude a statement going to the heart of the underlying matter, even if it is framed as being offered for another purpose.

The judge may see these questions as a way to get around the requirement to produce a witness whose facial purpose is just a scam. There is an argument to be made that the statements aren't offered for their truth, but it isn't a rock solid one.

Statements #1 and #2 might be accepted after Moya and Trixxx had testified, as the argument that the statements are not being offered for the truth of the matter would be much stronger then.

Statement #3 is also complicated because it is a hearsay within hearsay case, so each step of the chain has to be analyzed. Funaro's statement that Trixxx said something is hearsay, but what Trixxx allegedly said was also a hearsay statement made to Funaro who was asking her for the truth of the matter asserted.

Answer 2

Prima facie, it's all hearsay

The question "Why did you subpoena Glory Days?" is problematic unless its answer is strictly limited to what Haller knew or experienced, like "I thought she could provide relevant evidence." As soon as he goes beyond that into what that evidence might have been, we are clearly into hearsay territory. In effect, it's trying to introduce what Days might have testified about if she had been available, and that's hearsay.

I can't speak for the united-states, but in australia, there is an exemption to the hearsay rule if a person is unavailable to testify if, for example, they're dead. In new-south-wales, this exemption is in s65 of the Evidence Act 1995, but it is circumscribed, and I'm not sure that it would apply in these circumstances. In any event, if the lawyer wanted to introduce what Days said to Haller, they need to do it head-on and argue a s65 exemption, not try to introduce it in this back-handed way.

Answer 3

The hearsay rule applies to an introduction of evidence or a supposed confirmation of an alleged fact. So let's explore this scenario.

Funaro relates that Moya contacted him to obtain a habeas petition as he believed the gun that got him sent away for life was planted; that his investigation concluded that the two escorts had been present in Moya’s residence prior to the arrest; that he tracked down Trina Trixxx and met with her; and that during this meeting Trixxx denied having planted the gun herself, but stated that Glory Days had told her she had done it, on De Marco’s orders.

If this is introduced as a form of testimony about Glory Days' (or De Marco's) involvement, that's hearsay. We could start arguing about Glory Days being deceased and how that effects the validity of the claim, but that's a red herring, because this isn't being introduced as an alleged fact.

The question wasn't "who did it". The question was:

Haller asks Funaro what led to him having Glory Days subpoenaed.

Funaro's answer is not establishing any fact about Glory Days actually having done this, nor whether De Marco told her to. Funaro's answer is establishing that he heard an unproven allegation, which explains why he would then subpoena Glory Days, so that he could further verify this claim with Glory Days herself. If anything, those actions indicate that Funaro was well aware that this was hearsay (legally and practically) and therefore pursued a non-hearsay source to confirm or deny the allegation.

Following hearsay as part of your investigation is perfectly fine. Introducing hearsay as if it were a confirmation of a claim is not. That's the important distinction here. There is no expectation that Funaro knew for a fact that what he heard was true. He's only claiming that it was said to him, and that alone gives him sufficient justification for then subpoenaing the person fingered by the hearsay.

For the purpose of the scene in question, Funaro's statement is not meant to be taken as a statement of fact that Glory Days did this. It is meant to be taken as a statement of fact that Funaro was told this. Whether it is actually true or not is irrelevant.

Hearsay only applies when it is introduced as an implied confirmation of the secondary piece of information - it is rejected specifically because you didn't hear if from the horse's mouth.
Hearsay does not apply when you are testifying that you heard something said without making any claims as to whether that statement was correct or not.

So, is it technically hearsay? Yes.
Should it be allowed as evidence of Glory Days' guilt? No.
Should it be allowed as evidence of Funaro having heard something that justifies him subpoenaing Glory days? Yes.

However, there is a careful line to walk here in allowing that fact to stand, which means balancing whether this information is sufficiently relevant. Because if it's not necessary, Funaro would be equally justified in only saying "because I heard her name mentioned during my investigation" because he's not being cross-examined about that (it's only a way to start the conversation on this topic), then the added information of "X claimed that Y did it" isn't being added for the purpose of the question being asked, at which point it is considered to be hearsay as that would be the only reason to add it into the testimony.

So it's difficult. It is, on a technical level, hearsay. But it depends which question it's answering, and if it is sufficiently relevant to add this into the answer and not just a superfluous mention.