Sidebar: witness hearsay

📄 Sidebar: witness hearsay — Thursday, April 20, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\20\SIDEBAR-WITNESS-HEARSAY.DOC

TRIAL

▲ Day 60 of 167

◀ Direct examination of Andrea Mazzola (part 5) Direct examination of Andrea Mazzola (part 6) ▶

Date: Thursday, April 20, 1995 • Utterances: 10

A brief sidebar to resolve a hearsay objection raised by defense attorney Peter Neufeld. Prosecutor Hank Goldberg argued that the question posed to the witness was not hearsay because it concerned the absence of a statement — whether Dennis Fung ever told the witness to discard and regenerate a form — rather than the truth of any declarative statement. Judge Ito agreed and overruled the objection.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

We are over at the side bar. What is the non-hearsay purpose?

# 3 MR. GOLDBERG:

Corroborate Mr. Fung's testimony that he never tried to generate a new form which he has already testified to.

# 4 MR. NEUFELD:

That is--

# 5 MR. GOLDBERG:

So what she is saying is that Mr. Fung never told me to generate a new form, so there is no declarative statement that it is coming in for the truth of the matter asserted. There is no declarative statement period. What is the statement that it is coming in for the truth? It is the absence of a statement that is coming in.

# 6 MR. NEUFELD:

First of all, what question was he going to state? Because he started to say something. What was the question you were going to ask?

# 7 MR. GOLDBERG:

Is did Mr. Fung ever tell you to generate--to throw this document away and generate a new form or to clean up this document up.

# 8 MR. NEUFELD:

I would object again on hearsay.

# 9 THE COURT:

All right. Overruled. It is not a statement.

KEY QUOTE

# 10 MR. NEUFELD:

Okay.

Temperature

procedural

Key Quotes (2)

Hank Goldberg

It is the absence of a statement that is coming in.

Core legal argument that distinguishes between a declarative statement offered for truth and the mere absence of any instruction — the crux of why the objection fails.

Lance A. Ito

Overruled. It is not a statement.

Ito accepts Goldberg's logic concisely, resolving the objection.

Evidence (1)

Informal

A document (form) associated with Dennis Fung's evidence collection work, potentially an evidence collection or chain-of-custody form

discussed — whether Fung instructed the witness to discard and regenerate it

Notable Exchanges (1)

Hank Goldberg•Peter Neufeld

Goldberg explains that the question targets the absence of a statement rather than any affirmative assertion, distinguishing it from hearsay; Neufeld re-objects but is overruled.

strategic

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement / conduct

Goldberg seeks to corroborate Fung's own testimony that he never instructed the witness to discard and regenerate an evidence form, implying the form's integrity is at issue.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 5788 • 10 utterances

Criminal Trial

Department 103