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July 7, 2006

One of the guys in the office was in trial this week, and encountered what I call the "police officer exception" to the hearsay rule.  You know how it works:
Q.  Officer, what did you do when you arrived at the scene?

A.  The neighbor, Mrs. Shack, came to me and told me --     

      DEFENSE COUNSEL:  Objection.

      THE COURT:  Sustained.  Rephrase the question.

Q.  What did you learn as a result of your interrogation of Ms. Shack, officer?

A.  I learned that the that she had been present during the altercation between the victim and the defendant, and that -- 

       DEFENSE COUNSEL:  Objection, your Honor!

       THE COURT:  He's not saying what she said. He's saying what he learned. Overruled. Proceed.

A.  I learned from Mrs. Shack that the defendant had grabbed the victim and thrown her down.
It's not always that flagrant, but an unfortunately surprising number of judges have no problems with police officers testifying what they "learned as a result of their investigation," even when what they "learned" is obviously hearsay.

So there are a few cases you might want to carry in your trial folder.  One is a case out of the 8th District from over 50 years ago, City of Cleveland v. Coleman, 72 Ohio Law Abs. 94, a hit-and-run prosecution where the court held that a police officer's testimony that he "learned" of the defendant's license plate was inadmissible hearsay. Of much more recent vintage is Bryans v. English Nanny and Governess School, Inc., 117 Ohio App.3d 303; in that one, a discrimination suit plaintiff's testimony that she learned from other students that employment positions were available to them, but not to her, was held inadmissible.

Another good case is one from the 10th District in 1990, State v. Cassidy, 1990 WL 20083, which has a real nice quote:

Although Officer Morris did not relate specifically what Peer told him, the effect was the same. In his testimony, Morris stated that as a result of talking with Peer, he arrested defendant. The logical conclusion of this testimony is that Peer told Morris that defendant was somehow involved in the murder of her husband.  The result was that in an 'indirect' fashion, hearsay evidence was admitted.

You might also acquaint the trial judge with the Crawford rule on hearsay -- and I keep meaning to do a post on that -- which means that testimony along these lines will be a violation of the Confrontation Clause, and then you get into that nasty stuff about the state having to show that the error's harmless beyond a reasonable doubt.  Should do the trick.

By the way, in case anyone thinks I'm exaggerating the problem, the testimony I had above wasn't from my friend's trial.  It's taken from an actual transcript in an appeal I handled a few years back.  It's the one I talked about earlier, where I got punked on the issue of severance of trial.  I raised the hearsay argument, too, but this was pre-Crawford, so the court blew me away on that one by holding it was harmless error.
I think they did put something in the opinion about me having worn a nice tie for oral argument, so that made me feel better.

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