Opinion
CASE NO. 4:01 CR 207.
March 28, 2002
ORDER DENYING DEFENDANT'S MOTION REGARDING HEARSAY
Before the Court is Defendant Traficant's motion for the Court to admit out-of-court statements by witnesses and audiotapes under an exception to the hearsay rule. (Docket # 272). The government opposed the motion. (Docket # 282).
In his motion, Defendant Traficant seeks admission of two types of statements. First, he believes that defense witnesses should be permitted to testify to out-of-court statements by John J. Cafaro, David Sugar, and Charles O'Nesti. Second, he seeks admission of four audiotape recordings of telephone conversations between himself and Robin Best, Harry Manganaro, Richard Detore, and Henry DiBlasio.
For the reasons that follow. Defendant Traficants motion is denied.
ANALYSIS
Under Rule 801(c) of the Federal Rules of Evidence, "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is usually inadmissible because it lacks accepted standards of reliability. Such standards of reliability require testimony to be given under oath or affirmation, to be subject to cross-examination and to offer an opportunity to observe the witness's demeanor while he or she is testifying on the stand.
There are several exceptions to the hearsay rule under Rules 803, 804, and 807. Although unavailability of a declarant is not itself an exception to the hearsay rule, it is a prerequisite to the exceptions of Rule 804.
Defendant Traficant's assertion that defense witnesses should be permitted to testify to out-of-court statements by John J. Cafaro, David Sugar, and Charles O'Nesti is premature. As the government points out in its brief, "[t]he Congressman's motion does not identify the witness(es) through which the testimony would be offered, the content of the statements which he asks the Court to admit or the context in which they were allegedly made." (Docket # 282 at 1-2, 3, and 6). Without specific information regarding specific statements, this Court cannot rule on the possible applicability of hearsay exceptions.
Therefore, the procedure that this Court has used during the trial to address hearsay issues will continue to be followed. If a party objects to a question or answer of a witness on hearsay grounds, and the Court is not in a position to rule immediately, a voir dire of the witness will be held outside the presence of the jury during a break or at the end of the trial day in order to determine whether the statement to be elicited is barred by the hearsay rule.
The four audiotapes referred to by Defendant Traficant in his motion are not admissible because each statement made on the tapes is not admissible.
Every statement made during the course of the Congressman Traficant's taped conversations with Robin Best, Harry Manganaro, and Henry DiBlaslo is hearsay that does not fall under any exception to the hearsay rule or under any category of non-hearsay. Therefore, these tapes are inadmissible.
With the exception of two statements by Richard Detore, every statement made during the course of the Congressman's taped conversation with Mr. Detore is hearsay that does not fall under any exception to the hearsay rule or under any category of nonhearsay. Two statements by Mr. Detore may fall under the then existing emotional condition exception of Rule 803(3). These statements are: "I fear of my children's lives. I'm scared to death." (Docket # 272 at D-25) and "I basically am at a breaking point. I'm mentally running . . . I'm [ready] to just go ahead and blow my head off. It is so bad if it wasn't for my kids and the strain it would have on my kids, I'd be gone." (Docket # 272 at D-26). Although these statements may not run afoul of the hearsay rule, neither statement is relevant to the charges in this case or to the credibility of any witness. Thus, the entire tape of the Congressman's conversation with Mr. Detore is inadmissible.
Accordingly, the four audiotapes submitted by Defendant Traficant will not be admitted in this trial.
CONCLUSION
Defendant Traficant's motion regarding hearsay is denied.
IT IS SO ORDERED.