Explanation of hearsay to Indiana federal court jury goes awry.

• Author: Ziemer, David

Byline: David Ziemer

There are undoubtedly cases in which a juror, or jurors, questions the fairness of the proceedings.

Simply telling the jury to leave that to the judge and stick to its fact-finding role may not improve their perception.

However, trying to explain the rules of evidence to the jury carries far worse risks, as an Aug. 15 opinion by the Seventh Circuit amply demonstrates.

Daniel W. Curry was charged with four counts of armed robbery, among other offenses, in Indiana federal court.

Curry testified at trial, denying any involvement in the robberies, and suggesting that his brother, Arthur, had perpetrated the crimes.

During the testimony, the government objected on hearsay grounds whenever Curry began testifying about conversations he had with Arthur. The district court sustained those objections, and prohibited Curry from testifying about conversations he had with his brother.

During rebuttal testimony, a police officer testified that Curry had told a different story at the time of his initial interview, and pointed out numerous statements in Curry's testimony that were inconsistent with the initial interview.

Hearsay Examples

The court later received a question from one of the jurors, asking, Why do some witnesses get to tell the Court what someone else said, like tellers can say what another teller said, but some witnesses can't say what another person says, like the defendant couldn't say what his brother said?

The judge gave a lengthy (four pages of trial transcript) answer to the jurors about the hearsay rules.

Afterwards, Curry's attorney requested a sidebar, and moved for a mistrial, based on the court's answer.

The judge had stated, in part, the best example of [inadmissible hearsay] is if you have got two kids and one of them, you don't know which one, took the peanut butter out of your kitchen and you have got the two kids standing there and the one kid said, 'Well, he took it.' Can you rely on that as a trustworthy statement? No.

The judge's discussion also referred to hearsay testimony of government witnesses as trustworthy in explaining why it was admitted.

Defense counsel observed that the judge's example of untrustworthy testimony was similar to Curry's defense -- that his brother robbed the bank, rather than him.

The judge acknowledged the similarity, but denied the mistrial motion; instead, the court gave another instruction to the jury, emphasizing that it is the jury's role to decide who is trustworthy...