I saw a feature tonight on the Australian current affairs program called, uh, A Current Affair about a murder suspect, who walked free because of “shaky evidence”. He was accused of strangling a mother of two, who had been blackmailing him for years with a sex video they’d made while she was underage. But amazingly, the news crew managed to extract a confession out of him! Personally, I think this is dodgy because:
The murderer was dressed like a hobo and had yellow teeth and a creepy laugh, and they kept doing extreme close-ups of his face while playing ominous music.
The reporter who interviewed him while he made his confession was dressed like, well, a reporter. Geez.
A Current Affair has a history of not letting the truth get in the way of a good story.
You know how they reveal to people on Candid Camera that they’re on TV? “Well guess what, you’ve just confessed to murder on national television!” That was what the reporter said.
They filmed the killer’s possible “next victim”. Something about that doesn’t seem right.
But more importantly, the reporter also said “You’ll be locked up once this goes to air” or something along those lines. This seemed a little… how shall we say, Hollywood? I asked my friend about this and she said the footage wouldn’t be admitted as evidence if it was broadcast because a case could be made for tampering? I’m not sure how that works, but in any case it seems kinda weird for a TV station to put crucial evidence to air before turning it in, and if they did turn it in then wouldn’t the police prevent them from putting it to air?
Oh, and: how can a “news” program keep faking stories, and still stay on air? :\
As a general proposition, if this happened in the US, the taped confession would be admissible as evidence against the declarant.
Such a statement is hearsay - an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement. Normally, hearsay is inadmissible. There are exceptions to that rule, and one of those exceptions is an admission against interest. When someone admits to an act that exposes him to penal or pecuniary liability, that admission may be offered in evidence against him.
I don’t understand the “tampering” objection. In order for the tape to be introduced, someone has to lay a foundation for its accuracy, by testifying that the tape represents a true and accurate depiction of the conversation. Without that testimony, the tape cannot be admitted. If the defense believes the tape was tampered with, then they would have to show that the foundational witness was lying, by cross-examination or by production of their own witness to the contrary. The judge would hearing both sides and rule on whether proper and credible coundation had been laid.
Depending on the popularity of the programme, and the extent to which the “confession” was picked up by other media outlets, the defense would (I imagine) have a pretty good case for claiming the defendent’s right to a fair trial had been compromised.
If I read the OP correctly, the suspect isn’t currently in any trial. Would that mean that if I commit a horrendous crime and then confess to the media before I get arrested I couldn’t get a fair trial and/or should not be tried?
I’m a wee bit confused as to why the tape would be considered hearsay. I could see that if the reporter were called on to discuss the content of the tape, a hearsay exception for statements against interest being pertinent, but if the reporter is only called to authenticate the tape—that he shot a tape of X on Y day under Z conditions and that this is the tape in question—then again no hearsay is involved.
As for the tape, I’m again confused as to why it would require a hearsay exception. It’s not something else testifying about what the defendant told it, it is a reproduction of the defendant’s previous statements.
How can it be called a news program? It’s not, actually.
ACA and Today Tonight are very, very careful not to sell themselves as news programs. If you watch the promos, they’re always sold as “Current Affairs” programs. Which means they’re not held to the same standards of reporting that the news is.
How the hell do you think they get away with all of those “This innocent sixteen year old mother of eight was brutally abused by centrelink” style exposes all the time?
Hearsay is any out-of-court statement offered in evidence to prove the truth of the matter asserted. People think of hearsay as something spoken, but hearsay can be contained in documents, in videotapes, etc.
The tape is hearsay because it is someone’s out-of-court statement being offered in evidence to prove the truth of the matter asserted. The fact that it is a videotaped statement is irrelevant, because it was made out-of-court – i.e., not under oath. As Balthisar points out, if you’re not under oath, you can lie wildly, and the hearsay rule is an attempt to counter this, because even if you’re lying wildly, there are certain things you’re less likely to say unless they’re true (i.e., a statement against interest). Incidentally, that doesn’t mean your statements to the media aren’t “binding,” it just means you weren’t under oath, but they still can be used against you. Balthisar, if there’s a knock on your door, it’s probably just the cops.
Also, as to the “tampering” comment, the only thing I can think that your friend meant was the rule of completeness or best evidence rule, or that showing the segment of the “news” show would be more prejudicial than probative, but showing the unedited news footage would be fine.
As for a “fair trial,” they can move it to a different place or screen the ever-lovin’ heck out of the jurors in voir dire so that they can put together a panel of people who have not seen the program.
You raise a good point. Under the basic definition of hearsay, Bricker is right:
If the analysis ended there, you would be wrong. The statement is hearsay under this definition, looked at in isolation. And this is the definition that most lawyers would use when asked to define hearsay. We tend to think of most of the situations where hearsay is admissible as exceptions to the defined rule, and not a change in the definition itself.
But the FRE rule goes on to say:
Under FRE 801(d)(2), the statement would not be hearsay.
(Note: the hearsay rule can vary from state to state. The FRE only applies to Federal proceedings. In some states, I think Bricker would be absolutely correct, with the statement against interest being an exception to the rule.)
Oh, and I should repeat a point that Bricker has made. The OP asked about an Australian situation, and a bunch of American lawyers have taken over the thread by citing American law. It was worth doing, as it’s an interesting issue,
but it was a hijack. Sorry about that.
I’m sure Bricker and Campion will join with me in saying that we’ll defer on this point to any Aussie lawyer who wanders in.
And if you were tried for causing the explosion, this confession could come back to bite you. I’m not sure what you mean by the confession not being “binding.” As noted by numerous lawyers in this thread, under American law the confession to the media is admissible as evidence against the accused. What do you think “binding” means in a legal sense relating to confessions?
Uh, “binding” was a bad (lay) choice of words. And I didn’t say that no one could introduce it in court, but I meant to imply that such evidence is absurd, after all, I just confessed to the bus bombing, which is absurd. Yeah, the police might come a knocking and I’m not doing myself any favors, but when you’re talking about juries there’s a big difference between cops extracting a signed or taped confession and some wanker on the street with a camera (or a SDMB) recording me admitting to something.
As for the actual legal points, then ditto what campion said.
FWIW, I truly don’t mean to confuse anything that I’m saying for legal interpretation but for practical interpretation. Reading what I write should make it obvious enough that I’m not a lawyer.
I cannot, however, think of a functional difference between “X is hearsay, but admissible under an exception to the hearsay rule,” and “By rule, X is not hearsay.”
Well, as I explained above, admission of the tape depends upon the foundational testimony. If the defense claims the tape is fake, then they have two chances: convincing the judge that the foundational testimony is not credible, so that the tape is never admitted, or arguing to the jury that the tape is a fake.
And of course, as Campion points out, the best evidence rule applies: the tape in question would have to be the unedited tape.
I’m hoping that this won’t have to be moved to IMHO, but if that’s the fate it must suffer in the absence of any factual based info on how the brain processes information, well, such is life.
I see it on a daily basis, from people who can’t seem to enter the correct auditorium at a three-screen theater despite being told what direction to go in and the color sign to look for to people who can’t seem to get their clothing on the hook on my massage room door in spite of the fact that I physically touched the hook when I told them where to hang their clothes to, well, I told you to get under the sheet, yet here’s your bare ass smiling at me in all its un-sheet-covered glory.
I can understand if there’s a language barrier, but I’m mainly talking about native English-speakers who can’t seem to comprehend the simplest of directions.
Is there some psychologically based reason for this, some neurological wiring thingy that makes them unable to process “left, blue” or “clothes here on hook” or “under sheet”?
Nor can I. Given that, if Rhthymdvl hadn’t posted his question, I probably wouldn’t have commented on the distinction. But he said:
And he was absolutely correct (at least under the FRE), so I couldn’t just say “you’re wrong, it’s an out of court statement, and therefore is hearsay” and leave it at that. As you point out, though, it’s a distinction without a difference.
