Just something I thought of while looking at the attempted murder thread.
Say that i’m off to visit a friend of mine at his job. Just as i’m asking what floor he is on, however, an armed man enters the building, declares his intent to kill the CEO, and takes me hostage. In the lift on the way up, however, the man breaks down, tells me that he can’t go through with it, and is going to unload his gun and leave. Before he can do so, however, we arrive at the floor where security is already waiting with weapons drawn. The attempted assailant is forced to drop his weapon and the police are called.
Later in court, the man uses his change of mind as his defense. I am called to the stand. Would my recollection of his renouncing of the crime be allowed under hearsay? Moreover, would *his * recollection of his renouncing of the crime be allowed?
Just to be clearer on that last part, i’m pretty sure he could say “I put away my gun and was about to unload it”. But would he be allowed to say “I told my hostage that I had changed my mind”?
Your testimony as to his statement would likely be subject to a hearsay exception.
No, your example is double hearsay, also known as hearsay within hearsay. Testifying “Bob said to me…” might be hearsay, depending on who Bob is and what he said.
Hearsay is an out-of-court statement, offered in evidence in court to prove the truth of the matter asserted in the statement.
In this case, it would be hearsay – he (or you) would be testifying that he said something, and he’d be offering it to prove that what he said was true.
The rules of hearsay provide for some exceptions, however. In the federal system, Rule 803(1) permits the introduction of hearsay if the statement describes a: “Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
Or it might be admitted under 803(3): “(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”
I sometimes see hearsay like this admitted if it is “offered for its effect upon the listener.” If, after his change of heart on the elevator, you shouted “Don’t shoot - he’s giving up!” to the security guards, or otherwise behaved differently than you would have, it can be thus offered.
I wouldn’t even get to hearsay (despite that being the subject of the OP), because I’d say your testimony is irrelevant.
He was going to kill the CEO, he took a substantial step towards killing the CEO (plus the specific intent to kill the CEO) - i.e., he came to the building armed, then he took you hostage, and got into the elevator with you.
Attempt is complete. His withdrawal is irrelevant. As is his change of mind.
Depends on your jurisdiction I suppose. In general, renunciation or abandonment or whatever you want to call it is never a defense to attempt once a defendant has gone beyond mere preparation. The crime of attempt is completed.
However, assuming that your jurisdiction allows renunciation as a defense to attempt - you are correct that it would be relevant to prove that defense. That said, I highly doubt that it would be applicable on these facts after the defendant has already used physical force and taken one hostage.
As a general rule, people are only allowed to testify to things that they know through their own experience. For example, if I were charged with battery and you were a witness to it, you could testify that you saw me punch someone. But if you didn’t see it yourself - if you only heard about it from your brother-in-law, you wouldn’t usually be allowed to testify to that. This is why the hearsay rules exist - to prevent people from testifying about things that they know only second-hand.
It happens quite often, though, that the words someone utters are relevant facts in a case. The Scooter Libby trial is an example - he is charged with lying to federal investigators, and the case on both sides depends on who said what to whom, and when they said it. When Tim Russert testified about conversations that he had with Libby, he testified to relevant facts about the case that he knew through his own experience. In this case, it would probably not be allowed for Russert’s editor (for example) to testify about what Russert told him about his (Russert’s) conversations with Libby.
Many of the exceptions to the hearsay rule are like this. They are intended to disallow people from testifying about things they’ve only heard about, and to allow people to testify to relevant things that they know first-hand. In the case presented by the OP, assuming that the defendant is charged with attempted murder, the state of mind of the defendant is an element of the crime. The statements he made in the elevator help reveal his state of mind, so they are relevant. Revenant Threshold heard the defendant say it - he didn’t learn about it second-hand. This is a case where one would expect there to be an exception to the hearsay rule, and as others have already shown here, there is one.
Gracias - I was looking for an MPC provision and I couldn’t find one. I did read some interesting commentary on renunciation from googling around a bit. Link if anyone’s interested. That’s as far as I took it though.
It’s an interesting defense - I’ll admit that I was unaware that it went quite as far as it does.
In England and Wales (the OP’s location) it would probably be admissable under the common law res gestae exception, currently preserved in the Criminal Justice Act 2003 -