Thursday, March 23, 2006
The Pajama Hearsay Game?
Remember Vincent Gigante? He was the mobster who, starting in the mid-60s(!), feigned mental derangement to avoid criminal punishment. See Selwyn Raab, Mob Boss Who Feigned Incompetence to Avoid Jail, Dies at 77, NYTimes (Dec. 20, 2005). Gigante, nicknamed variously Chin, Oddfather, the Enigma in a Bathrobe, was nothing if not persistent: As the moniker Enigma in a Bathrobe suggests, one of his strategies was to walk around Greenwich Village in pajamas while muttering nonsense words. Well, that's all very interesting. But what I want to know is whether his kind of pajama-walking and nonsense-talking is hearsay.
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Clearly not, because the pajama comments would not be offered to prove the truth of the matter asserted by those comments. See also FRE 803(3) (exception to hearsay rule for "then existing mental, emotional, or physical condition").
My bottom line is also that the Don's pajama behavior is not hearsay. I think sound intuition supports that conclusion. But if one pays careful attention to the Federal Rules of Evidence, one might conclude that there is at least an argument that the pajama behavior is hearsay. Put aside the Mafia Don's muttering for the time; focus on his non-verbal behavior. The Don walks the streets in his pajamas. Call this (or some part of it) nonverbal conduct. Was his nonverbal conduct intended to be an assertion? Aruably yes. Arguably the Don was trying sending the message, "I am crazy," or perhaps he was deliberately disseminating (misleading) information to the world, that he was crazy. If you grant all of this, perhaps the Don's conduct was assertive conduct hearsay within the meaning of FRE 801(a)(2).
Or perhaps not; intuition revolts against the conclusion that the conduct is hearsay. If one wants more than intution, might the explanation rest on the proposition that if one assumes deceitful intent, the Don is not trying to communicate what he actually believes?
But let's assume (for the sake of argument) that the Don's misleading nonverbal conduct is hearsay. How then does one conclude that his misleading verbal conduct -- e.g., the nonsense syllables as he walks the streets -- are hearsay? Easy: One uses the same logic: The Don in his own heart was using nonsense syllables to communicate the message that he is crazy and he was therefore(?) asserting that he is crazy.
Afterthought: About FRE 803(3) and pajama hearsay: The following question responds, belatedly, to one of Uncivil Litigators points, his second paoint: Can a statement be a statement that describes a then-existing state of mind if the evidence shows, the trial judge believes, that the declarant is attempting to misrepresent his or her internal state of mind -- i.e., if the trial judge believes that the statement is intended not to describe a state of mind but to MISdescribe it? (I have phrased this question as provocatively as I can.) [But does this argument undermine the case for saying that the pajama behavior is hearsay in the first place?]
The problem with the argument that the pajama behavior is hearsay is that it would necessarily contradict the defendant's position at trial. If the defendant is claiming that he was insane and that his bahavior was the product of that insanity then he must argue that the conduct was non-assertive. If the defendant concedes that he was not insane then he may argue that the conduct was assertive, but the best argument aainst admission would be relevance, not hearsay.
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