By Collin County Criminal Defense Lawyer Jeremy Rosenthal
This might be the first time I’ve blogged about a specific rule of evidence, but it’s a fun topic for me and I get asked about it quite a lot by clients so let’s talk about hearsay!
Hearsay is inadmissible in court and is defined by the Texas Rule of Evidence 801(d) as, “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.” Hearsay is rooted in the Sixth Amendment to the U.S. Constitution which allows an accused the right of cross-examination of witnesses against them.
Not very clear? No worries. They only devote 3 weeks to the topic in law school trying to get you to understand that one sentence. I’ll keep it simple though hearsay and it’s effects on admissibility are extraordinarily complex and often turn on multiple interdependent factors.
In it’s plainest terms — anytime a witness is on the witness stand and quotes someone (or something) else it’s probably going to be hearsay. We consider it unfair because it’s impossible to discredit information sources which aren’t even in the courtroom.
Here’s an example:
Police officer #1 is on the stand and says, “Defendant’s kind-elderly neighbor told me Defendant was the drunkest she ever saw any person in her life that night.”
This is textbook hearsay and here’s what makes this statement extraordinarily unfair to the accused on trial — it’s impossible to cross examine the elderly-neighbor about the statement in front of a judge or jury. Here’s how that cross examination would go:
Q: Officer, Do you know if elderly-neighbor might have mistaken Defendant for Defendant’s brother or Defendant’s roomate?
A: I don’t know. She told me it was the Defendant.
Q: Do you know if elderly-neighbor has good vision?
A: I don’t know.
Q: Do you know if elderly-neighbor has a history of accusing Defendant of things he didn’t do?
A: I don’t know.
Q: Do you know if elderly-neighbor was on medication herself that night which could impair her ability to see things far away?
A: I don’t know.
See how unfair this is? Cross examining the officer is like trying to get answers out of sheet-rock. We don’t know (1) if the officer has embellished the statement from the elderly-neighbor; and (2) we’re entitled to have the jury judge the elderly-neighbor in person while she’s questioned under oath. The jury can judge her mannerisms, her hesitation in answering questions, and simply her plain answers the officer can’t provide. It’s the cornerstone of a fair trial.
Here’s a bit more complicated example:
Police officer is on the witness stand and says, “I didn’t see Defendant actually commit the crime, but he did look down when he denied it to me. I’m very familiar through my training and experience with the study from Nevada which says people who look down when they deny things are always guilty.”
Here the officer is quoting a book or study and not an actual person. Under the hearsay definition of “statement,” it makes no difference. It would still be impossible for the defendant to show the jury the “Nevada” study (which doesn’t exist — as far as I know anyway) is nonsense.
Q: Who wrote the “Nevada” study?
A: I forgot. But I know they’re really good and we use it in our academy. I just know the guys who did the study were right.
Q: How was the study done?
A: I don’t remember.
Q: Hasn’t the study been discredited by virtually every expert in the field?
A: I don’t know.
Q: Didn’t your own academy quit using it 10 years ago?
A: I don’t know. I just know the “Nevada” study says your client is guilty.
See — we have the same problem as the first example. A study like this would have to be accepted as authoritative by an expert in the field and then could be relayed to the jury. Another difference is the Defense would be allowed to discredit the study by showing other inconsistent language from the same study.
Not All Quotes of Outside Sources are Hearsay
To be hearsay, the quote must try to prove “the truth of the matter asserted.” This is where hearsay discussions get really confusing and complicated. Normally if hearsay tends to cast the accused in a negative light (the main goal of the vast majority of criminal prosecutions), there’s a good chance it is being used for “the truth of the matter asserted.”
Admissions are Not Hearsay
One key exception to the hearsay rule are known as “admissions by a party opponent.” This is to say anything a criminal defendant tells someone is admissible in court (absent Miranda violations). Also any party in a civil lawsuit can be directly quoted as well.
Texas Rule of Evidence 803 lists 24 exceptions to the Hearsay rule. This means even though something might be hearsay — it is still admissible because of it’s inherent trustworthiness. Examples could be vital statistic records, statements made under high duress, or records kept in the normal course of business.
Common Uses/ Abuses of the Hearsay Rule
Hearsay is a really hot topic in family assault cases as well as child abuse cases.
In family assault cases, it’s very common where the alleged victim spouse does not wish to testify in court. In these instances it was common for prosecutors to try and prove their case through police who arrived on the scene and took statements from the accuser. The policy would try to use the “excited utterance” exception for the policy to essentially testify on behalf of the victim. The U.S. Supreme Court largely put an end to this practice in 2004 in Crawford v. Washington, 541 U.S. 36 (2004) because the Court concluded this practice (in many instances) violated the Sixth Amendment right to confront accusers.
In child abuse cases prosecutors and law enforcement’s main goal at trial is to corroborate a child victim’s outcry of sexual or physical abuse. It’s common for prosecutors to call persons who the child may have told about the abuse in an attempt to repeat the story and infer the story must be true due to how the child made the outcry.
Texas does have an outcry rule which allows at least one adult originally told the allegations by the child to repeat what would otherwise be hearsay. It has been a re-occuring struggle for the defense in these cases, however, to prevent the host of trained child advocates whose main function is therapy and treatment of the abuse — from coming and testifying in a very honed and polished manner against the accused though they are often the 3rd, 4th, or 5th person told about the abuse from the child.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should consult an attorney directly. Communications sent through this forum are not confidential nor subject to the attorney/ client privilege.