A Question for the Lawyers about Hearsay

[smhbbag]

Listening to this lecture by Prof. James Duane ("Don't Talk to the Police" by Professor James Duane )...a question came to mind.

Let's say possible suspect Joe talks to the police about what happened in an event, and he is eventually charged.

At trial, the policeman testifies about the incriminating things Joe told to him on the scene. This is valid evidence and not hearsay.

But, if Joe's lawyer then cross-examines the policeman and asks him to relay what Joe said that is actually exculpatory and good for Joe, it is disallowed and will be ruled as hearsay upon the prosecutor's objection.

1) Is my summary of the rules accurate?

2) Assuming the answer to #1 is yes, why is that the case? I'm sure this is an old rule that is well-grounded, but I can't think of a reason for it. Why would an officer relaying something Joe said that's bad for Joe be considered valid evidence, while the same relaying of conversation is deemed hearsay if it's good for Joe's case?

FYI, he cites rule 801D2A (I have no idea how that is usually formatted) at around 9:15 in the video.

What was the original justification for this distinction?

 

[Edward]

Listening to this lecture by Prof. James Duane ("Don't Talk to the Police" by Professor James Duane )...a question came to mind.

Let's say possible suspect Joe talks to the police about what happened in an event, and he is eventually charged.

At trial, the policeman testifies about the incriminating things Joe told to him on the scene. This is valid evidence and not hearsay.

But, if Joe's lawyer then cross-examines the policeman and asks him to relay what Joe said that is actually exculpatory and good for Joe, it is disallowed and will be ruled as hearsay upon the prosecutor's objection.

1) Is my summary of the rules accurate?

While the rules may vary, based on the jurisdiction, I'll start with the general answer under the common law, 'no'. Your summary is not correct. Both statements are hearsay (an out of court statement admitted to prove the proof of the matter asserted therein).

The first statement is admitted not because it is not hearsay but because if falls within one of the established exceptions to the hearsay rule. (declaration against penal or pecuniary interest). The theory is that someone would not say something to hurt themselves, unless it was true. Other factors which would add an aura of credibility to the statement would be a dying declaration (although in most jurisdictions, you don't have to die, you just have to reasonably think you will) statements of medical condition made to a doctor (since if you lie to the doctor, the treatment might kill you), etc.

Self serving statements, on the other hand, have no external motivation to be governed by truth. So if Joe wants to talk his way out of it, he has to take the stand and subject himself to cross examination.

The Federal Rules of Evidence differ somewhat from the common law. You can view FRE Rules 801 -807 here:
Federal Rules of Evidence (LII 2009 ed.)

Oops, I was a bit confused by the formatting. It appears that you were talking about the FRE, not the common law rule:

(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity

The citation form would be Rule 801 (d) (2) (A)

and, under the FRE, it would be considered not hearsay, rather than an exception. This treatment was considered somewhat controversial when it came out.

 

[Brian Withnell]

And all of this is why I long for and wait for the redemption of the body and the ushering in of the new age. We have a system of law in which there is a battle waged in a court with the hope that the truth will win. It is not both sides seeking the truth, it is both sides seeking victory. I would rather a King with better wisdom than Solomon, better justice than all the courts of this earth combined, and mercy that will pardon the regenerate sinner.

God save us from this world.

 

[larryjf]

This interests me as well.
Does the police officer basically work for the prosecutor rather than the defense? If so, would that be another reason that they would not be compelled to defend the defendant?

 

[smhbbag]

The first statement is admitted not because it is not hearsay but because if falls within one of the established exceptions to the hearsay rule. (declaration against penal or pecuniary interest). The theory is that someone would not say something to hurt themselves, unless it was true. Other factors which would add an aura of credibility to the statement would be a dying declaration (although in most jurisdictions, you don't have to die, you just have to reasonably think you will) statements of medical condition made to a doctor (since if you lie to the doctor, the treatment might kill you), etc.

So, in these cases, an officer's testimony is still hearsay, but is seen as valid evidence for other reasons, while there are no exceptions or reasons why hearsay in favor of the defendant would be admissable?

Thank you for spelling that part out. It's helpful, though I would still have serious doubts about the theory that a defendant would not speak against himself unless it were true.

 

[Edward]

This interests me as well.
Does the police officer basically work for the prosecutor rather than the defense?

In the sense that both work for the state, they are on the same side - going after the criminals

If so, would that be another reason that they would not be compelled to defend the defendant?

No, that is not part of the rationale.

It's been a long time since I've practiced criminal law, although the hearsay rules apply in civil litigation, as well.

 

[VictorBravo]

Let's say possible suspect Joe talks to the police about what happened in an event, and he is eventually charged.

At trial, the policeman testifies about the incriminating things Joe told to him on the scene. This is valid evidence and not hearsay.

But, if Joe's lawyer then cross-examines the policeman and asks him to relay what Joe said that is actually exculpatory and good for Joe, it is disallowed and will be ruled as hearsay upon the prosecutor's objection.

What Edward said is how it works: a defendant’s admissions to the police, or anyone else, are admissible under the hearsay rule.

In criminal cases, however, you still have the Miranda rule. If the defense attorney can demonstrate that either the defendant was not advised of his right to remain silent, or that the defendant for some reason didn’t understand his right to remain silent, then the exclusionary rule can be applied. This is a court-created rule designed to prevent coerced confessions. It would keep out the testimony.

But, if the defendant was advised of his rights and decided to speak to the police anyway, he is in a bind. If he wants to get his version to the jury, he will have to testify and waive his right to remain silent in court. That opens him up to cross-examination. The jury can then evaluate whether his testimony is self-serving or credible.

 

[smhbbag]

In criminal cases, however, you still have the Miranda rule. If the defense attorney can demonstrate that either the defendant was not advised of his right to remain silent, or that the defendant for some reason didn’t understand his right to remain silent, then the exclusionary rule can be applied. This is a court-created rule designed to prevent coerced confessions. It would keep out the testimony.

But, if the defendant was advised of his rights and decided to speak to the police anyway, he is in a bind. If he wants to get his version to the jury, he will have to testify and waive his right to remain silent in court. That opens him up to cross-examination. The jury can then evaluate whether his testimony is self-serving or credible.

I'm understanding now that this is the case, but the why is still nagging me.

As I understand it, many or most "admissions" that can be admitted under this rule are not understood by the suspect/defendant to have been admissions at all at the time he gave them. Even though they will be viewed by the court as potentially incriminating statements, the defendant does not see it that way when he says them, and so there is no reason to assume the 'honesty bonus credit' you get for those kinds of statements.

Most people, regardless of Miranda warnings, have absolutely no idea that a statement acknowledging they were present at a place/time, or did X but not Y, could be thrown back at them and used as evidence of some crime that would at first appear completely unrelated to their statement. If they don't believe themselves to be admitting anything, then why ought the court to assume that testimony is more reliable than hearsay in his favor?

 

[VictorBravo]

OK, Jeremy, now I understand what you are getting at.

Here is the sequence of rules under the Federal Rules of Evidence and in most (but not all) states:

General rule: Hearsay is not admissible.

What is hearsay: An out-of-court statement by anyone, and repeated by the person testifying in court, that is used to prove the truth of some allegation.

Statements that are not hearsay: 1. Prior statements by someone who was under oath and subject to cross-examination (as in testimony in a previous trial); and 2. an "Admission" of a party opponent offered against the party.

An admission is not just a statement against his interest, but any statement made by the party opponent that is offered against the party.

So, leaving aside Miranda, under these rules, an admission like the defendant telling the police "I was at the scene" can be used against the defenandant. Under the current way of putting it, it is not a "hearsay exception" but instead is defined as not hearsay.

But, to address your concern, the police officer can be cross examined using the other exculpatory statements of the defendant in impeachment of the testimony.

For example, say evidence already establishes that the crime occurred at 10:33 a.m. The police officer testifies that the defendant said "I was at the scene at 10:30 a.m." It's admissible. But now, on cross examination, you can ask the police officer if the Defendant said anything that might indicate that he was gone by 10:33. The prosecutor's objection is not valid, because you are not seeking testimony to prove the truth of a matter--you are examining the statement that the police officer offered.

If the police officer says, "no, he didn't say anything about being gone before 10:33," and you have such a statement, you can introduce it because you are probing the memory of the police officer, not trying to prove a fact.

If the police officer says, "yes," then you can ask him what his understanding of what the exculpatory information was. Here, the prosecution's objection should not be sustained because you are asking what the police officer understood, not what the defendant said. You probe on and on. If the police officer is evasive, you can point that out to the jury in closing. If he is forthright in saying that the defendant clearly indicated he was gone before the crime, you point that out. That is the "art" of trial work.

So, even in the constrictions of the rules, there is plenty that can be done to clarify or cast doubt on the admission.

As for the rationale, the comments to the Federal Rule state that admissions do not need the "assurance of trustworthiness" that the hearsay exceptions establish because the adversary system allows such statements to be examined--ie. the party is present to refute the statement. The wrinkle, of course, in the criminal setting is that you waive your 5th Amendment right when you have the defendant testify.