Johnny Football and the Rule Against Hearsay (Part Two)

Football.jpgFirst, the right of confrontation would require the ESPN reporter to be on the stand to testify as to his knowledge. So, imagine in a criminal court Johnny Manziel and the autograph broker were being tried for violating NCAA rules or inducing said violations? There they sit with their lawyers at the defense table. The prosecutor asks the ESPN reporter, sitting on the witness stand, “Mr. Rovell, please tell the ladies and gentlemen of the jury what this autograph broker told you he did with Johnny Manziel.”

“Objection” says Manziel’s defense lawyer. “Hearsay.”

The objection is sustained as to him. What Mr. Rovell heard the autograph broker say is a statement made out of court and offered for the truth of the matter asserted (by the statement). The prosecutor would have two options: 1) move on, or 2) try to find a hearsay “exception” to get the statement into evidence. If he is a cunning prosecutor with lots of experience backdooring evidence, he says to the judge, “I offer the evidence only for its effect on the listener and the reason this witness took further steps in his investigation.” The defense attorney, knowing the evidence is being backdoored in to prejudice the jury and not really to help them understand the effect on the listener, can hopefully get the judge to shut it down. Under Texas law, however, hearsay can be admissible for the “limited purpose” of showing not the truth of the matter asserted, but that the witness was told the information and took further action in response. However, the judge does not appreciate the move and blocks it. What can the prosecutor do now?