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From the Mailbag, Part II

The next time I decide to take a break, I think I'm going to do what Rush Limbaugh does when he goes on vacation.  No, not deal with my jones for painkillers; hire a guest blogger.  And I just might have Jack Stevens, a lawyer in Toledo, do that.  Jack took the time to write me a 3-page letter on the Supreme Court's decision in State v. Ricks, which I discussed last week.  He makes some interesting points, and it prompted me to take another look at the decision.  

A quick refresher.  In Ricks, the detective testified that the co-defendant to a murder, Gipson, had identified Ricks as his accomplice.  The State argued this wasn't hearsay, because it wasn't being offered for its truth, but rather to explain how the police had come to show Ricks' photograph to two other witnesses to the crime.  The court unanimously rejected this view, although only four justices joined Pfeifer's opinion that this violated the hearsay rules.  Two others joined French's opinion concurring only in judgment, which didn't reach the hearsay issue:  it held that the evidence should've been excluded under 403(A) because its probative value was outweighed by its prejudicial impact. 

It's hard to understate the impact of Ricks, and I may have done so.  As I pointed out in my original post, if the prosecutor is trying to get into evidence what people told the police on the theory that it's merely to explain their investigation, rather than being admitted for the truth, you can object, ask for a sidebar, plunk down a copy of Ricks, and tell the judge that the Supreme Court just ruled that what the prosecutor was doing is not permissible.  You're looking for every edge you can get in trial, and having a pro-defense Supreme Court opinion on a key evidentiary issue gives you a big edge.

Jack goes a little further, though, focusing on the majority's test:

In sum, in order for testimony offered to explain police conduct to be admissible as nonhearsay, the conduct to be explained should be [1] relevant, [2] equivocal, and [3] contemporaneous with the statements; [4] the probative value of statements must not be substantially outweighed by the danger of unfair prejudice; and [5] the statements cannot connect the accused with the crime charged.

Jack says that the last factor is an absolute:  if the statement connects the accused to the crime, it doesn't come in, period.  In my initial post, I said that didn't make a whole lot of sense:  if the statements didn't connect the accused to the crime, why would the State bother to try to introduce them?  On further reflection, that may or may not be true, but the fact is that that's exactly what the majority opinion says, and until a majority of the court comes along in a later decision and says it didn't really mean that, that's the law.

Jack makes a couple of other good points.  His main one is pat on the back for Judge Yarbrough of the 6th District, who wrote the opinion in State v. Richcreek, which Pfeifer borrowed from heavily, and the dissenting opinion in the 6th's decision in Ricks, about which Pfeifer said not a word.  So a shoutout to Judge Yarbrough.  Jack also makes a point about prosecutorial misconduct.  In Ricks, the prosecutor got the evidence in by claiming that it wasn't being offered for its truth, then argued to the jury in closing that they should use Gipson's statements as substantive proof of guilt.  It'll be interesting to see if other courts take a harder look at this kind of bait-and-switch.

But I bounced all this off of my buddy John Martin, head of the county PD's appellate division, and he had an interesting take on it, too.  The purpose of the trial isn't to recreate the investigation, it's to recreate the offense.  In Ricks' case, who cares how the police came up with the photograph they showed the two witnesses?  The fact is, the photograph was of Ricks, and the two people identified it as being one of the people they saw committing a murder.  What more does a jury need to know? 

To be sure, if the defense attacks the investigation, that might change things.  Take the prototypical "investigative exception" situation:  the police respond to a call and arrive at the scene of a reported bank robbery, where someone yells, "he ran down the alley!"  The police go into the alley, and sure enough, they find the defendant with a bag of money from the bank.  If the defense wants to question the police about why they didn't follow certain other leads, it's perfectly proper for the prosecutor to counter with the out-of-court statements:  we followed this lead because the guy told us where he'd seen the robber run to.  But other than that, why should the jury care about why the police went into the alley?  What they saw when they got there is all that's really relevant.

So I had two other guys do the heavy lifting for me on a post this week.  Maybe I'll make them both guest bloggers for when I go on vacation the next time.  All I've got to do is figure out where I want to go.

I'll have to give that some thought.

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