US v. Check case brief, 582 F.2d 668

US v. Check 582 F.2d 668 (1978) (2nd Cir 1978)

FACTS

-Spinelli, undercover cop, is investigating whether Check is involved in selling drugs; Check effectively tells informant, Cali, that he wants to sell Spinelli drugs; if Cali got on witness stand, he could say that -Check had incriminated himself; but Cali refuses to testify; so prosecutor has Spinelli testify to what he saw (Cali and Check talking) and then has Spinelli testify to what Spinelli said to Cali, but not what -Cali said to Spinelli.

ISSUE

-Was it hearsay to have S testify to what he told Cali, but not vice versa?

HOLDING

yes, it is hearsay to circumvent the hearsay rule in this manner.

RULES
Out-of-court statements by witnesses are still literally hearsay – witness can tell what he saw, but not what he said (not for truth of what was asserted).

Jury will infer what Cali said – though S is just repeating what he told Cali w/o telling what Cali said back, jury will be able to infer what Cali said (which is definitely hearsay)

Link to Case:  US v. Check