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The court takes a look at hearsay

Article VIII of the evidence rules deal with hearsay.  You'll find the definition of it, the exceptions to it when the declarant isn't available, the exceptions where it doesn't matter whether the declarant is available, special exceptions, like in child molestation cases.  One thing you won't find is the "investigatory" exception.  That arises with astonishing frequency in criminal cases, and it happened in Thomas Ricks' murder case.

There was no question that Aaron Gipson had murdered Calvin Harper, but Gipson claimed he didn't act alone:  he told the police that someone named "Peanut" had accompanied him.  The police drove him past Ricks' house, where Ricks happened to be standing outside, and not only did Gipson identify him as Peanut, the police testified that he appeared "upset and scared."  The police subsequently obtained a picture of Ricks and showed it to Gipson, who told them, "That's Peanut." 

The detective testified to all of this at trial; Gipson wasn't called.  The police had used the picture in a photo array they showed to other witnesses, who identified Ricks; thus, the judge ruled that Gipson's statements weren't being admitted for their truth, but to explain the course of the police investigation, namely, how the police obtained the photograph of Ricks.  The court of appeals affirmed, but last week the Ohio Supreme Court unanimously reversed.

The result came as no surprise; when I discussed the oral argument, I mentioned that "only O'Connor seemed even vaguely inclined toward the State's position."  But what's more interesting is how the justices - one group of four, another of three - came to that result.  The money quote is this:

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

I'm not sure if you should read too much into that last line; obviously, the investigation has to have connected the defendant to the crime.  Whether the statements by Gipson connected Ricks to the crime is never mentioned in the court's analysis, for the obvious reason that it did.   And it almost always will.  A witness to a robbery yelling to the police that the robber just ran into an alley is the classic example of non-hearsay, but if the police find the defendant in the alley, that obviously connects him with the crime.  That certainly isn't going to be barred.

In fact, the analysis by both Pfeifer's opinion for the majority and French's for O'Connor and Lanzinger, concurring only in judgment, depend heavily upon the analysis from the the 6th District's decision in State v. Richcreek (which I've spent the last two years telling you is one of the best decisions on hearsay you'll find) that the trial court must assess the evidence under EvidR 403(A)'s test:  "whether the risk that the jury will prejudicially misuse the content for its truth exceeds the probative value of the statement for the nonhearsay purpose."   French, in fact, completely discounts the hearsay aspect, deciding that since the judge instructed the jury that the evidence was not offered for the truth of the matter, the jury could be presumed to have followed that instruction, and that's that.  She then proceeds to conclude, as did Pfeifer, that the prejudicial aspect of the evidence outweighed its probative value, and one is left to wonder how the curative instruction would have been effective in having the jury discount the truth of Gipson's statements, but "did little to ameliorate the risk that the jury would misuse Gipson's out-of-court statements as substantive evidence of guilt."

There's an old saying that hard cases make bad law, but sometimes easy cases make no law, and that's the problem with Ricks:  what the State did was so over the top that not much in the way of hard analysis was required.   As French points out, it would have been easy for the police to explain how he investigation led to Ricks without using Gipson's statements or describing what he did when he saw Ricks; in fact, it wasn't even necessary to tell the jury that Gipson was the one who led the police to Ricks.  And Pfeifer's opinion notes that the prosecutor regaled the jury in closing argument with how Gipson picked out Ricks' photograph, making it impossible for the State to contend that Gipson's identification wasn't being introduced for its truth.

That's not to say that Ricks has no value.  Although Pfeifer's opinion contains language about the decision being rendered "under the particular facts of this case," when the Supreme Court decides a case, especially on a subject like this, it's going to have an impact. 

In this case, I think it's going to be substantial.  It's common-place for prosecutors to try to slough off damaging testimony with the assertion that "it's not being offered for the truth."  If you can go to sidebar, show the judge a copy of the opinion, and tell her, "the Supreme Court reversed a conviction for this same sort of thing," it's unlikely that she's going to spend a lot of time in a micro-comparison of the facts of Ricks with the facts of the case she's hearing.  The bottom line is that Ricks should have a substantial chilling effect on the use of the "investigative exception."  That's particularly true where the statement sought to be introduced comes from an accomplice.

Also noteworthy is that if it's determined that the statements were being offered for their truth, it's going to be very hard for the State to avoid reversal.  Pfeifer's opinion makes clear that such statements are testimonial, and thus reviewed under the "harmless beyond a reasonable doubt" standard for constitutional error.

While Ricks doesn't provide much in the way of rigorous analysis for determining whether a statement is being offered for its truth, or merely to aid the police investigation, it does provide a clear message:  the use of statements in this fashion will be scrutinized far more closely.  And that's a very good message for the defense.  


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