In the Netflix show The Lincoln Lawyer, season 3, episode 7, there is a scene in which a witness is testifying in court as a witness for the defence.
Background
For those not familiar with the show, the following is a simplified summary of the state of affairs (as far as the viewer knows them) at the time the testimony is given:
An escort (Glory Days) is coerced by a DEA agent (De Marco) into planting a gun in the house of a Mexican drug cartel associate (Moya). Moya is arrested on drug charges with gun enhancement and sentenced to life imprisonment. He discovers that the gun was planted by Glory Days and contacts a lawyer (Funaro) to file a habeas petition to have him released. Glory Days and another escort (Trina Trixxx) are both subpoenaed for this petition. A week after being served, Glory Days is murdered. The court scene takes place during the subsequent trial against Julian La Cosse, who was (falsely) accused of her murder.
The immediate context of the court scene is that the defence attorney (Haller) is trying to get this whole chain of events introduced into the case, since he believes De Marco to be the real killer. The witness on the stand is the other lawyer, Funaro.
The relevant scene
In the scene, Haller asks Funaro what led to him having Glory Days subpoenaed. Funaro relates that Moya contacted him to obtain a habeas petition as he believed the gun that got him sent away for life was planted; that his investigation concluded that the two escorts had been present in Moya’s residence prior to the arrest; that he tracked down Trina Trixxx and met with her; and that during this meeting Trixxx denied having planted the gun herself, but stated that Glory Days had told her she had done it, on De Marco’s orders.
During this scene, the prosecutor objects three times that the witness statement is hearsay. The objections come when Funaro states that:
- Moya told him the gun wasn’t his
- Trixxx denied having planted the gun
- Trixxx said Glory Days had said she’d done it
All three objections are sustained by the judge; after the third one, Haller even agrees (in sidebar) that it is hearsay.
My issue is that I don’t really see how it is.
The actual question
I am obviously not a lawyer, but I have always understood hearsay to essentially correspond to the very first sentence in the Wikipedia article Hearsay or the Federal Rules of Evidence, Rule 801(c) (my emphasis):
“Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
There are many cases in court room dramas where we hear witnesses say things like, “She told me that X had happened, so I called Y to ask if she was okay” with no objections about hearsay (indeed, I’m sure there are other examples of it even in The Lincoln Lawyer). The recited out-of-court statement is not presented to ascertain its veracity, but to explain the witness’s own actions, so presumably this does not count as hearsay.
In this instance, Funaro is obviously reciting out-of-court statements (1), but the purpose is just as obviously not to prove the veracity of those statements (2). The statements are provided to explain why Funaro subpoenaed Glory Days; in other words, they are used as explanations of Funaro’s own actions. Establishing the veracity of the statements themselves would be the purpose of the subpoenas and the habeas petition, a matter to be settled in a separate case. The defence’s plan is to next call Trixxx and De Marco as witnesses so they can testify as to the veracity of their own statements.
I understand that court room dramas often play fast and loose with legal terms and how courts actually work in order to make ‘better tv’, but it still struck me as odd that either 801(c)(2) was completely ignored for this scene, or the judge and both counsellors considered that 801(c)(2) was met.
In a real-world criminal court case in Los Angeles, would the statements described above be likely to be considered inadmissible as hearsay by counsel/judges? If so, why?