Hearsay, Part Deaux: Frog Gravy Legal Case

October 23, 2011

Good afternoon, class.

Now that you are experts regarding what constitutes hearsay, let’s take a look at an interesting issue in Crane-Station’s case.

The arresting officer, McCracken County Sheriff’s Deputy Eddie McGuire testified at her Preliminary Hearing that, after she was thoroughly searched at the roadside by a female officer who did not find any contraband or paraphernalia, he arrested her for DUI, handcuffed her with her hands behind her back, placed her in the backseat of his patrol vehicle, and transported her to Lourdes Hospital in Paducah for a blood draw. As he was assisting her to get out of the backseat at the hospital, she told him that her watch had fallen off her wrist during the ride and it slipped beyond her reach behind the seat. She asked him to please retrieve it, which he agreed to do.

When the returned to his vehicle after the blood draw, he unlocked the back door, pulled the seat forward, and reached beneath it to grab the watch. When he handed her the watch, he also showed her a small crumb-like object and said, “Sure looks like heroin to me.”

He also testified that he field tested the substance after he took her to jail and it tested negative for the presence of heroin. He said he did not field test it for cocaine because “We knew all along it would be crack.”

In the trial judge’s chambers before jury selection on the first day of the trial, the prosecutor asked the trial judge to prohibit the defense from mentioning during jury selection and opening statement her statement about her watch and her request to retrieve it on the ground that the statements were inadmissible hearsay unless he offered them into evidence as an admission by a party opponent, which he did not intend to do. He also asked the judge to prohibit the defense from attempting to introduce her statements into evidence during the trial or to mention them in closing argument.

The trial judge agreed despite defense counsel’s objection.

To make matters more bizarre, Deputy McGuire changed his testimony regarding how he retrieved the watch. Without mentioning her statements, of course, he said he saw her watch and the rock together in the seatbelt crack in plain view on the seat beside her before he helped her to get out of the backseat after they arrived at the hospital.

When her attorney attempted to confront him on cross examination with the deputy’s prior inconsistent testimony under oath at the Preliminary Hearing, the prosecutor objected and the trial judge sustained the objection.

In closing argument, the prosecutor argued that she had not explained why her watch was in plain view next to the rock of crack in the seatbelt crack right beside her. Not surprisingly, the jury convicted her of possessing the rock of crack and tampering with evidence (i.e., attempting to conceal it in the seatbelt crack).

Now, let’s analyze her statements. To determine if they were hearsay, we begin by asking if the defense would have offered them to prove the truth of the matters asserted in her statements.

Answer: No, because they would have been offered to show that in response to something she said, he pulled the seat forward to look for her watch and that is when he found it, handed it to her, and produced the crumb-like substance that by his own admission he “knew all along was going to be crack.”

Notice that phrased this way, it is clear that what she actually said was not important. The point is she said something and whatever it was, it prompted him to pull the seat forward and look under it where he found her watch and the crumb-like object. That is, they were not in plain view and we know that because he testified at the Preliminary Hearing under oath that that is how he found the watch and the rock.

Whenever the actual words in a statement do not matter, as is the case here, the statement necessarily is not being offered to prove the truth of the matter asserted in the statement. Make a note of this and remember it because it is very important.

Not only were her statements admissible, the deputy’s previous testimony under oath at the Preliminary Hearing was admissible to impeach his testimony about finding her watch and the rock together in plain view beside her.

The prosecutor’s incredibly sleazy closing argument commenting on her failure to explain why her watch and the rock were together in plain view, when he persuaded the trial judge to prohibit her from providing that explanation, was an atrocious improper comment on her court ordered silence.

Finally, the trial judge’s evidentiary rulings prevented her from putting on a defense in violation of her Fifth, Sixth, and 14th Amendment rights.

Namaste

Cross posted at my blog and the Smirking Chimp.

Author’s Note: Due to the length of this essay, I have decided to discuss the rest of the hearsay rule in Part 3 tomorrow.


What The Hell Is Hearsay?

October 23, 2011

I will start with an example.

A witnesses an accident and later tells B that Igor Ivarson ran a red light and hit Peter Piper in a crosswalk, killing him.

Flash forward to a trial. Igor Ivarson is charged with negligent homicide and the prosecutor calls B to the stand and asks him the following question after establishing that B had dinner with A several hours after the accident:

What, if anything, did A say to you about the accident?

If you are representing Igor and you do not stand up and say in a commanding voice, “Objection, your Honor. The question calls for hearsay”, a hole should open up in the floor beneath your chair disappearing you forever into the Great Beyond From Which There Is No Return. This is an exceedingly grim place not unlike Hell.

B’s answer would be hearsay because he would be repeating what A told him and his answer would be offered to prove that Igor ran the red light and hit Peter Piper in a crosswalk. That is one of the fundamental questions of fact that the prosecution must prove beyond a reasonable doubt in Igor’s trial.

Igor’s right to confront his accusers via cross examination would be violated if A’s statement comes in because Igor’s lawyer cannot cross examine A since A is not on the witness stand. Equally important, A was not under oath when A made the statement and the jury cannot evaluate A’s credibility, if A is not present, questioned, and cross examined.

For purposes of the following definition:

A is the declarant or person who made the statement.

B is the witness in court repeating the declarant’s statement.

(Keep in mind that a statement can be oral or written and also includes non-verbal conduct, if such conduct was intended as an assertion. An example of conduct intended as an assertion would be nodding your head to indicate agreement in response to a question, like “Do you want to eat pizza tonight?”)

Okay, here’s the definition:

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See Federal Rule of Evidence (FRE) 801(c).

Since A did not make the statement while testifying at the trial or hearing, (he made it out of court before the trial), and A’s statement was offered to prove what the statement asserted, A’s statement is hearsay.

Simple, right?

Okay, what if A’s statement were offered for some other purpose? For example, let’s say it was offered to establish when A first knew about the accident. If that were the case, and that was a relevant issue, A’s statement would not be hearsay since it was offered for a purpose other than establishing the truth of the matter asserted in the statement.

This is a critical distinction that eludes oodles of judges and lawyers, not to mention law students. Don’t you make the same mistake.

By the way, sometimes judges will admit A’s statement, subject to a limiting oral instruction telling the jury that they may only consider A’s statement for the limited purpose of deciding when A first knew about the accident and for no other purpose.

Yah, sure. You betcha.

As if the members of the jury will ever remember that limiting instruction during their deliberations. Sheesh!

Now that you think you know what statements are hearsay, guess what?Some statements that fit the definition of hearsay are defined as not-hearsay.

Think of them as Jokers in a deck of cards.

What are these Jokers?

Hint: Not the football coach at the University of Kentucky.

FRE 801(d) identifies two types of non-hearsay statements:

(1) Prior statements by a witness, and

(2) Admissions by a party opponent.

A prior statement of a declarant who testifies at a trial or hearing is not hearsay if the witness is subject to cross examination about the prior statement and the statement is (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.

An admission by a party opponent is a statement by a party to a lawsuit that is offered by the party’s opponent. Note that only the opponent can offer the seemingly hearsay statement; the party who made the statement cannot offer it. For example, if Igor Ivarson confessed that he ran a red light and hit Peter Piper in the crosswalk, his statement is admissible as an admission by a party opponent, even though it is offered to prove the truth of the matter asserted in the statement.

Can the defendant offer his own statement for another purpose, in other words, to prove something other than the truth of the matter asserted in the statement?

Yes, for example, to prove that the person to whom he made the statement acted in reliance on that statement, if that is an issue in the case. I will provide a detailed example of this situation in my next post as this is exactly what happened in Crane-Station’s case.

Suppose Igor Ivarson told the police that he was not driving the vehicle that struck Peter Piper. Would his exculpatory statement be admissible to prove that he was not driving the vehicle?

Not unless the prosecutor, who is the party opponent, offered it and no prosecutor is that stupid. At least they are not supposed to be.

There is only one exception to this rule and that is based on a defendant’s constitutional right to present a defense. If the statement is the only exculpatory evidence available, he cannot be prevented from offering his statement by this rule.

Finally, a statement by a coconspirator in furtherance of a conspiracy is admissible against the coconspirator and other members of the conspiracy.

NEXT: Exceptions to the hearsay rule.

Any questions?

Cross posted at my website and the Smirking Chimp.

And because Dakine always says he can, I will too:


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