Citation. United States v. Check, 582 F.2d 668, 3 Fed. R. Evid. Serv. (Callaghan) 685 (2d Cir. N.Y. July 17, 1978)
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Brief Fact Summary.
Defendant was convicted of possessing cocaine with the intent to distribute. Defendant was a member of the New York City Police Department. Key evidence against Defendant involved an informant who would not testify at trial.
Synopsis of Rule of Law.
The hearsay rule cannot be circumvented by questioning a witness about one-half of his conversation regarding out of court statements offered to prove the truth of the matter asserted.
Sandy Check, Defendant, was a patrolman in the New York City Police Department and was convicted of possessing cocaine with intent to distribute and other related offenses. Stephen Spinelli was the key witness against him, and he worked with an informant named William Joseph Cali. Spinelli testified that Cali set up a meeting with the Defendant. Cali would not testify at trial and the prosecutor asked Spinelli what he said to Cali to avoid any hearsay problems, instead of asking what Cali said. Spinelli testified multiple times what Cali said to him and the statements were incriminating against the Defendant.
Was the testimony of Spinelli regarding what he told Cali inadmissible hearsay?
Justice Waterman held for the United States Second Court of Appeals that much of Spinelli’s testimony regarding his conversations with Cali were inadmissible hearsay and reversed the conviction and remanded for a new trial.
The jury learned from Spinelli that the Defendant money up front for the narcotics, that he kept the narcotics at his house, was supposed to arrive at the meeting with a ounce of cocaine, and when he would produce the cocaine. The statements of Spinelli were being offered to prove the truth of the matter asserted. The prosecution was clearly trying to incorporate statements by Cali even though he had refused to testify at trial.