In any of the various “never talk to the police” videos you will come across the claim that a defendant can not use his own statement as exculpatory evidence.
I’ll use My Cousin Vinnie to illustrate; Ralph Machio is being questioned about a robbery and murder (he thinks he is being busted for shoplifting) and the cop says at some point, “…and that’s when you killed the clerk.”
Machio: I killed the clerk? I killed the clerk!?! I didn’t kill the clerk I stole a candy bar. Someone killed the clerk? Jesus that’s terrible but I didn’t do it <— paraphrased from memory
Later at trial the cop is asked to recount what Machio said in questioning and says, “I killed the clerk. I killed the clerk.”
If these videos (made by lawyers to provide advice to the public) are to be believed then Machio would not be able to rebut with, “But I said it incredulously and then went on to say that not only did I not kill the clerk I didn’t even know he’d been hurt.”
My questions are: why not? Why can you not rebut a portion of your statement being taken out of context? Are there exceptions? Does this hold true across the US? Does it hold true in Canada?
I understand that it is “hearsay” but I don’t understand the underlying logic.
What makes it funny is that he is using a Northeastern speaking style that isn’t typically found in Alabama. He clearly says “I shot the clerk” twice but the tone of voice is everything because he is trying to ask a question in disbelief. However, it sounds very damning when read back in court by an Alabama police officer from a transcript in a flat tone.
I don’t know what type of recourse he could have had in court on that point because the transcript is technically accurate.
Thanks for the link I misremembered. I had thought the cop in the clip was there when Machio dummied it out and reacted.
But the main question regards the notion that what you say can be used AGAINST you but never FOR you which is the point being made in the provided cites.
In your example, Machio could certainly testify that he said “I killed the clerk?” in an incredulous, questioning manner; though I think that might allow the prosecution to cross examine him and get in other questions they wanted to ask him. I certainly can’t see why Machio’s lawyer wouldn’t make sure the video got played if it existed and the cops were trying to make it sound like he confessed. He’s got every right to rebut the cops’ evidence. Certainly Machio’s lawyer should question the testifying cop
But that’s missing the point of the lawyers. The first point is, sure Machio can say in court he was sarcastic or whatever, but that’s extra effort he has to expend, and who knows whether the jury will be paying attention to his rebuttal, or believe him, if there’s no videotape (“Of course he’d say he was sarcastically confessing: he’s a murderer and murderers lie. How do I know he’s a murderer? Well, he confessed!”). Why take the chance that you’ll say something that the cops can try and take out of context to make you seem guilty? Better say nothing.
The second point is, even assuming a videotape exists where all Machio said was “What? I didn’t kill the clerk.”, what good is it really going to do him? Most juries are ready to believe that a murderer is capable of lying about it, even when he’s just been arrested.
I can’t answer the question its’ self but I did come across another lawyer video discussing the subject, and he gives a bit more detail on why this is so between 8:00 and 9:30. I don’t have the legal knowledge to add, expand, or comment on what this lawyer says about the rules of evidence, but I thought I’d at least present it.
Well, IANAL but it seems to me he is the defendant. To testify, he would have to take the stand. If he takes the stand, he opens himself up to any and all questions on any topic. Considering how stupid his talk with the cop went, maybe taking the stand and opening himself up to questions would not be a good idea.
Presumably, if the cop were reading the testimony, and he did subsequently say something like “… but I didn’t kill him; I just stole a candy bar…!” then the lawyer could ask the cop if the defendant said anything further to him. If that’s all the defendant said, it sounds pretty bad. You could ask the cop what the defendant’s tone of voice was like, but that requires the cop to answer truthfully and to have actually perceived the intonation of incredulity (and possibly make a judgement, which he may be reluctant to do…)
But AFAIK you can’t substitute a statement for full testimony? Either he tells his story and anything that goes with it that the other side wants to ask, or he doesn’t get on the stand and can’t use a statement to bypass that option and make excuses/explain himself.
I assume this means if the prosecution chooses not to mention your exculpatory evidence (too exculpatory?), you cannot bring it up.
To introduce the same information, the defendant would have to testify.
The point is the same as - when the defendant is being questioned on the stand, he cannot say “I didn’t do it” and then plead the fifth to and inconvenient questions he does not want to answer. He either tells the entire truth, under oath, or nothing.
I assume when he says under oath, on the stand, “I told that cop I didn’t do it when he arrested me” then the prosecution or defense can call on the cop to verify this assertion?
So, he says essentially the same thing, “because of rules of evidence what you say can be used against you but not for you. It can be used against you because of ‘prior inconsistent statements’ but ‘prior consistent statements’ cannot be used.” <–paraphrase.
He says there are some very limited cases where this doesn’t hold true but doesn’t go into them at all.
Thank-you for providing that.
Now I know that it applies in Texas (Hutson and Harris), Idaho (Atkinson - your cite) and, by inference, across the U.S. (Duane - as he doesn’t say anything like “this only applies in X states” or “this doesn’t apply in X states.”)
Duane says it’s hearsay, Atkinson says there are very few exceptions. So two of my questions are answered (to a greater or lesser extent.)
Yes, you can not use exculpatory evidence in your own behalf in a criminal case. On the other hand, they can’t use parts of your statement out of context. If the scenario in the OP happened, and the prosecution was only using a portion of the interview, a defendant could certainly bring out the remainder of the statement.
If the accused simply said words to the effect “I didn’t do it” that would be clear hearsay and inadmissible if offered by the defense. The logic behind that rule is that 1)it’s not under oath, and 2) it is not subject to cross examination.
[there is an exception to rebut claims of recent fabrication. Thus, if the defendant is claiming self defense, and they allege at trial that he’s just saying that because he hired a clever lawyer who coached him to say it, he could bring out the fact that he told the same story to the cops the night of events before he ever hired the lawyer.]
On the other hand, if he said “I didn’t do it” and later advanced a self-defense justification for the crime, the Prosecution could certainly tell the jury he told the cops he didn’t do it.
[In the US]
So I decided to look up the rules of evidence in the Canada Evidence Act. I was expecting some hundred page long encyclopedia PDF document but it looks like there are only 4 relevant rules and they have them summarized on the linked page. The following quote might help answer some of your question (bolding mine):
There’s a res gestae principle that Procustus’ first paragraph highlights: the admission of only a portion of the statement can be cured on cross-examination by admitting the rest of the statement.
Hearsay, remember, is an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement. So the defense cannot generally benefit from an earlier out-of-court statement made by the accused: these statements are generally offered to prove that the accused said something that was both true and exculpatory.
But I assume if the prosecution witness does NOT bring up the statement, the defense cannot ask him about it? (I.e. the Law & Order classic, only if “he opened the door, your honour…”)?
Again, thank-you for that. Frankly I would have done the same but your stated fear (hundreds of pages of density) stopped me. You are a better man than I am Gunga Din
But that all seems to relate to witnesses for (or against the accused) I’m interested in the accused himself.
From the Hutson and Harris video I’ve linked to:
Hutson (acting as insurance adjuster): Hello Mr. Smith? I’m Mr. Hutson. I work for State Farm and I’d like to record a statement today about the accident that happened yesterday. Do I have your permission to record this statement?
Harris (acting as injured claimant): Yes.
Hut: Awesome. How’re you doing today?
Har: Fine, I guess.
Hut: Great, that’s wonderful. Now can you tell me about the accident?
Har Okay, I was sitting at a red light, minding my own business, when a drunk driver came up behind me, 80 miles an hour and slammed into me. I’ve got six cracked vertebrae, three broken ribs, a snapped femur A ruptured spleen and I am in terrible pain.
Hut Alright. Thanks for your statement, have a nice day.
Harris (as lawyer): You know where my client messed up there? It was when he opened his mouth. Because out of all of those words the only part that is coming into trial is the part where my client admitted on tape, one day after a horrible accident that he was…
Both: Fine.
The claim seems to be here that despite the fact that the client delineated all of the woes associated with the accident the only admissible part of the statement is “I’m fine.”
Assuming that they are not obfuscating this seems to suggest that context won’t allow for the rest of the statement to come in.
Granted, in this instance it is civil but they give the implication that the rule holds for both criminal and civil.
That’s one of the parts I’m getting hung up on.
Nothing one says to the police is under oath. If the lack of oath precludes a defendant using his statement to exculpate then why doesn’t the lack of oath preclude the use to incriminate?
As to cross-examination I get that the 5th would provide a bar in that you could use the statement and then plead the 5th in order to avoid any investigatory questions about the truth of your statement. Kind of like taking your ball and going home.
So that would be an exception - and a perfectly reasonable one. Cool.
Again, that seems perfectly fair.
Again, the cites I provided and the one that Mikeeeeee provided are all clear on the assertion that it can only be used AGAINST you and not FOR you.
Are they just playing fast and loose? Because their statements all seem to say that there is no cure.
But why is an out of court statement admissible for the prosecution but not the defense?
Any spontaneous statement I make to the police is out of court. Why would the prosecution be allowed to introduce it but the defense be precluded?
That is where I am getting confused.
Just for the record - I am not currently, nor have I ever been, subject to a criminal or civil proceeding. This is truly idle curiosity.
The statement of an adverse party is not hearsay. (because it’s defined that way). The rationale is that if a party says something that hurts his case, it’s probably true (or at least it’s fair to let the jury know he said it). So, if a guy hits you with a car and says “Totally my fault, I was texting” the assumption is that he’s telling the truth. If he says “not my fault, I was being careful,” it doesn’t get the same presumption.
So if I’m understanding correctly then when the various law-talking-guys said that you statement can only be used against you, never FOR you they were sort of fudging the truth for the layman.
The prosecution can use part of your statement in order to bolster their case but if another part of your statement contradicts the portion used then the defense can bring in the rest of the statement.
But the defense can’t introduce the statement, only use the exculpatory portion to rebut the incriminating portion introduced by the prosecution
Yes. It’s simplistic but gets the point across I guess.
Generally. The law is full of exceptions and what not.
Or to rebut a charge of recent fabrication. (and there are exceptions to the hearsay rule that could possible apply, but usually don’t–at least for “confessions” and statements)
I misremembered. I had thought the cop in the clip was there when Machio dummied it out and reacted.
