Another Thing Prosecutors Think They Can Do That They Can’t

June 17, 2014
By Hanging Out with Carl Gunn


  • Prosecutors often offer evidence with damaging hearsay content on a theory that it’s not offered for the truth but just to show why the agent did what he did.
  • The evidence shouldn’t be admitted for this purpose because why the agent did what he did generally isn’t relevant.
  • You can rely on two Ninth Circuit cases that apply this reasoning as authority.


Another little evidence nugget I’ve always remembered came out of one of my early trials as a Deputy Federal Public Defender. In that trial, the government elicited testimony from an undercover agent that the reason he directed an informant to initiate contact with my client, who subsequently sold the agent some heroin, was that the informant had told the agent my client was selling drugs. My immediate reaction was to object to this as hearsay, but the prosecutor justified it and the judge allowed it on a theory that it wasn’t being offered for the truth of the matter but was being offered solely to explain why the agent did what he did.

This of course raises the question of whether it matters why the agent did what he did. Put in legal terms, how is why the agent did what he did relevant? And the answer the court gave in the appeal – United States v. Makhlouta, 790 F.2d 1400 (9th Cir. 1986) – was that it isn’t relevant. After holding that the testimony was not hearsay because it was not offered to prove the truth of the matter asserted but was offered to show the case agent’s state of mind, see id. at 1401, the Court explained this did not mean the testimony was admissible.

It does not follow, however, that the testimony was properly admissible to show [the agent’s] state of mind. Only evidence that is relevant is admissible. Fed. R. Evid. 402. The district court evidently acted on the assumption that [the agent’s] state of mind was relevant to [the defendant’s] asserted defense of entrapment. But under the law of entrapment, “it is not the state of mind of the government agent that is important; . . . it is the ‘predisposition of the defendant’ to commit the offense . . . that counts.” (Citations omitted.) Therefore, [the agent’s] testimony concerning [the informant’s] statement was irrelevant.

Makhlouta, 790 F.2d at 1402.

The Court applied this principle in another context in United States v. Dean, 980 F.2d 1286 (9th Cir. 1992). The testimony challenged in Dean was testimony by an officer that the reason he had gone to the defendant’s home, where he then found a gun, was another man’s claim that the defendant had extorted money from him by discharging a gun near his ear. See id. at 1287. The Court held the same principle that made the testimony in Makhlouta inadmissible made the testimony in Deaninadmissible.

The government contends that [the extortion victim’s] out-of-court statements were admissible because they were offered for the non-hearsay purpose of showing why [the officer] went to the mobile home. Even accepting this contention, the statements are inadmissible. “Only evidence that is relevant is admissible.” United States v. Makhlouta, 790 F.2d 1400, 1402 (9th Cir. 1986). (Additional citation omitted.) See also Fed. R. Evid. 402. For evidence to be relevant it must “‘be probative of the proposition it is offered to prove, and . . . the proposition to be proved must be one that is of consequence to the determination of the action.’” (Citations omitted.) [The extortion victim’s] out-of-court statements are probative of why [the officer] went to the mobile home. However, his reasons for going there are not of consequence to the determination of the action, i.e., they do not bear on any issue involving the elements of the charged offense.

Dean, 980 F.2d at 1288.

Remember this authority when the government says it just wants to explain why the agent – or some other witness – did what he or she did. There’s a certain common sense appeal to wanting to provide the explanation, but the rules require that evidence be relevant. Why an agent or other witness did what he did isn’t relevant, and it’s certainly not sufficiently important that it should be shown by highly prejudicial hearsay like that inMakhlouta and Dean.