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A primer on hearsay

You know the routine:

PROSECUTOR:  When you responded to the scene of the domestic disturbance, what did you do, officer?

WITNESS:  I was told by dispatch that the next-door neighbor, Ms. Smith, had witnessed the altercation, so I talked to her.

PROSECUTOR:  And what did she tell you?


PROSECUTOR:  It's not being offered for its truth, but only to explain why the officer did what he did afterwards, your honor.

JUDGE:  Overruled.

It happens about every day in a courtroom somewhere.  And that's why, if you try criminal cases, you absolutely have to have a copy of the 6th District's decision last week in State v. Richcreek when you walk into the courtroom.  It's hands-down the best, most thorough decision on hearsay I've come across in the 5½ years I've been doing this blog.

It also presents some of the most blatant violations of the hearsay rule you're going to see.  Richcreek was on trial for raping his two half-sisters, A.L. and A.M.  The evidence pertaining to A.M. consisted of testimony by a friend, a police officer, a social worker, a nurse, a school official, and a detective about what A.M. had told them about the incident, as well as a statement by A.M.  It did not consist of the testimony of A.M. herself; she told the prosecutor she didn't want to testify, and when she didn't show up for trial pursuant to a subpoena, the state had her arrested on a material witness warrant.  When she took the stand, though, she recanted, claiming she'd made it up because she was jealous of how much better her parents treated Richcreek.  The prosecutor attempted to impeach her with the statements she'd made to others and in the police report.

The state fared a bit better with A.L.; at least she didn't recant.  Her testimony, however, was also supported by witnesses who regaled the jury with what A.L. had told them about the incidents.  To top it off, the warrant and affidavit used to search Richcreek's residence were admitted in their entirety; the affidavit, of course, recounted A.L.'s claims in detail.

How did all this stuff come in?  Because the trial judge determined that it wasn't being offered to prove the truth of what A.L. or A.M. was saying, but only to show what the witnesses did in response, and besides, A.L. and A.M. were present and subject to cross-examination.

The latter point solves any Crawford problems, but it doesn't solve the hearsay problem.  That's where the opinion swings into action, and here's what you need to know:

Dual use statements.  Something isn't hearsay if it's not being offered for its truth, but that doesn't mean it's automatically admissible if it has a "dual use," that is, it relates directly to the crime.  "If the statement's content could also cut toward proof of guilt, the potential for abuse is great."  The opinion cites the 10th District's decision in State v. Blanton, that the statements must meet the EvidR 403(A) test (probative value outweighs prejudicial impact" and that "when the [out-of-court] statements connect theaccused with the crime charged, they should generally be excluded."   That's huge.  The opinion emphasizes the point:  "the well-worn phrase, 'not offered for the truth of the matter asserted' is not a talismanic incantation that opens the door to everything said outside the courtroom."

Substantive evidence.  If' it's not offered for the truth, it shouldn't be used to prove anything.  Here, the prosecutor used the hearsay statements in closing argument, claiming they disproved A.M.'s recantation and supported A.L.'s claims.  That was wrong; such statements aren't substantive evidence of anything.  What's more, the judge should have given a jury instruction not to consider them for that purpose, which is "is particularly critical when the statement's content might overtly militate toward inferences of guilt."  The court found especially disturbing the prosecutor's claim during trial that the statements weren't being offered for their truth, and then using them for that very purpose in the closing argument, strongly hinting that such a tactic will ordinarily require reversal.

Abuse of discretion.  There are few words more discouraging in an appellate opinion than "we review the trial court's admission of evidence for abuse of discretion."  Not so for hearsay; "while there is discretion to admit or exclude relevant evidence, there is no 'discretion' to admit hearsay."  Hearsay challenges are subject to de novo review:  the appellate court must determine on its own whether the statement qualifies as an exception to the hearsay rule.  One thing the opinion doesn't really address, though:  is the determination of whether the statement is being offered for its truth subject to de novo review?  There's probably a better argument to be made that the abuse of discretion standard applies here, as long as the statements aren't used as substantive proof.

Improper impeachment.  Under EvidR 607, you can't impeach your own witness with prior inconsistent statements unless you can show both surprise and affirmative damage.  Having a witness recant demonstrates the latter, but you can hardly claim you were surprised at the recantation when you have to have the witness arrested to make sure she shows up.  One more thing:  even if it's permissible impeachment, it's not substantive evidence.  If, say, the only evidence the state has in a domestic violence case is the impeachment of the alleged victim with her prior statement -- no bruises, no medical records, no witnesses to corroborate an assault -- they don't have any substantive proof, and you're entitled to a Rule 29.

Prior consistent statements.  You cross-examine the wife in a domestic violence case, insinuating that she made the claim up to help her out in the divorce case she filed against your client.  On redirect, the prosecutor has her testify about a statement she made before the divorce case was filed.  Proper?  Yes; under EvidR 801(D)(1)(b), you can introduce a prior consistent statementan express or implied charge against declarant of recent fabrication or improper influence or motive."  That's what the prosecutor relied on for A.L.:  the defense counsel had said in opening statement that A.L. was motivated by jealousy, and the prosecutor was admitting her statements to other people to rebut that.  Here's the problem, though:  "only prior consistent statements made before the alleged motive to fabricate arose are admissible."   Here, A.L. had the same motive -- jealousy -- to falsify her pretrial statements as she did to falsify her testimony at trial, and admission of her statements did nothing to refute the claim of improper motive.

There's some other helpful stuff in Richcreek:  the police officer was allowed to testify on several occasions that Richcreek "was deceptive" in response to various questions during the search, and that's a no-no.  There are some problems with the opinion, too.  It uses the constitutional standard of "harmless beyond a reasonable doubt" to gauge the effect of the hearsay violations, and that's probably wrong.  It's based on the idea that admission of hearsay also presents a confrontation clause issue.  But in Crawford, the Court made it clear that the clause is limited to admission of testimonial statements, while admission of non-testimonial statements is subject to ordinary evidentiary rules, and the normal harmless error standard.  (The statements, at least to the police, were certainly testimonial, but as noted the appearance of the witnesses at trial solved the confrontation problem.)  The court also decides the evidence was insufficient to convict Richcreek of the charges against A.M. because, discounting the inadmissible hearsay, there was no evidence of force, and vacates his conviction.  The problem with that is the Supreme Court's 2009 decision in State v. Brewer, holding that an appellate court must consider all the evidence, even that which should have been excluded, in determining whether the evidence is sufficient.

And I don't want to go overboard here.  This wasn't a close call.  One of the bad experiences for an appellate lawyer is finally finishing a 2,500 page transcript and realizing you've got nothing.  That didn't happen here; when he read this one, Richcreek's lawyer must have felt like the 14-year-old kid who stumbles across his father's stash of Playboy magazines.  Still, the opinion deals with a multitude of hearsay issues in a cogent and defense-friendly fashion, and it's a must-read and must-have.


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