# Defendant Can Not Use His Own Statement **URL:** \ **Category:** Factual Questions\ **Created:** [December 16, 2016, 7:36pm UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883 "2016-12-16T19:36:30Z")\ **Posts on this page:** 12\ **Page:** 2
**Author:** ![Zeke\_N.Destroi](https://avatars.discourse-cdn.com/v4/letter/z/4af34b/32.png) [@Zeke\_N.Destroi](https://boards.straightdope.com/u/Zeke_N.Destroi)\ **Post date:** [December 16, 2016, 11:43pm UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/21 "2016-12-16T23:43:45Z")
Cool enough. If you feel like getting into some of the exceptions I’d be super happy to read. Either way, thank you all for your replies! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 16, 2016, 11:45pm UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/22 "2016-12-16T23:45:48Z")
> [@md2000](#): > > 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…”)? Generally correct. But it’s worth pointing out that hearsay fools lots of people. It’s always necessary to ask yourself, “For what purpose is this statement being offered in evidence?” There’s discussion above, for example, about rebutting an inference of recent fabrication, so the defense could offer a prior statement not for the truth of the matter asserted but to show that the story told was consistent even before the motive for fabrication arose. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 16, 2016, 11:56pm UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/23 "2016-12-16T23:56:02Z")
> [@Zeke\_N.Destroi](#): > > Cool enough. > > If you feel like getting into some of the exceptions I’d be super happy to read. > > Either way, thank you all for your replies! The basic ones are found in Evidence Rule 803 Too numerous to quote them all here. But easy to google. Rule 804(b) is also interesting: > [@](#): > > (3) Statement Against Interest. A statement that: > > (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and > > (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. What we have been discussing so far in this thread are not so much exceptions as statements that are considered “not hearsay.” That is found in Evidence Rule 801: > [@](#): > > (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: > > (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: > > (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; > > (B) is consistent with the declarant’s testimony and is offered: > > (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or > > (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or > > (C) identifies a person as someone the declarant perceived earlier. > > (2) An Opposing Party’s Statement. The statement is offered against an opposing party and: > > (A) was made by the party in an individual or representative capacity; > > (B) is one the party manifested that it adopted or believed to be true; > > (C) was made by a person whom the party authorized to make a statement on the subject; > > (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or > > (E) was made by the party’s coconspirator during and in furtherance of the conspiracy. > > The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 17, 2016, 12:12am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/24 "2016-12-17T00:12:42Z")
> [@Zeke\_N.Destroi](#): > > **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. No, under those circumstances the plaintiff could certainly rebut the inference that he really meant “Fine,” by adding the portions relating to his injuries. I suppose the defense there could argue that no one with serious pain from such injuries would ever describe himself as “fine,” but that becomes a question of fact for the jury . . . after they hear the full context in which “fine” was offered. > [@](#): > > Are they just playing fast and loose? Because their statements all seem to say that there is no cure. There’s no doubt that handing the defense at a civil trial an argument like, “See, he said he was fine!” is something plaintff’s lawyers would like to avoid, so they’re right in the sense of what they’re saying, but wrong in the implication that the remainder of the statement is not admissible. > [@](#): > > 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. Because another exception is (often) an _admission_ against the speaker’s own interest. In this exception, the assumption is that when a person says “I did something good,” they are helping themselves and the later in-court admission of that claim for the purposes of proving that the good thing happened is problematic. But if a person says, “I did something bad,” then the admission of that statement later, in court, is more trustworthy for the purpose of proving the bad thing happened, because people are not usually eager to admit to false bad things about themselves. So, the prosecution gets to use the statements the accused made outside of court that hurt him at the time. But the defense doesn’t get to use statements the accused made outside court that helped him at the time. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 17, 2016, 12:16am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/25 "2016-12-17T00:16:53Z")
I agree with the submissions made by my learned friends **Bricker** and **Procrustus**. 🙂 > [@Zeke\_N.Destroi](#): > > But that all seems to relate to witnesses for (or against the accused) I’m interested in the accused himself. No, when we’re talking about a witness, the rules are the same whether the witness is the accused or some other person. It’s just that a statement against interest is more likely to have been made by the accused than by some other witness. The existence of a statement against interest is likely one of the reasons he’s the accused. 😉 > [@](#): > > 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? This question is a good one and goes straight to the heart of the rule about statements against interest. In Canadian law, an out-of-court statement, not under oath, is hearsay. So inculpatory and exculpatory statements are both hearsay and presumptively not admissible. The reason for this is because the person who made the statement is not there in court and cannot be cross-examined on it. Hearsay is presumed to be untrustworthy as a result. However, there are several exceptions to the rule that hearsay is not admissible. The principle that underlies the exceptions is whether there are other reasons to believe that the out-of-court statement is reliable enough to be admitted into evidence. That’s the common thread to the exceptions. In the case of a statement against interest, the reason it is considered reliable is that if an individual says something incriminating, that’s considered a good indicator of reliability, while statements in your own interest are not. It’s human nature to put the best possible interpretation on one’s own actions, so a statement putting yourself in a good light is not considered particularly reliable, and therefore not an exception to the exclusion of hearsay. If you want to say good things about yourself in a court case, you have to toodle on up to the witness box and testify under oath. But if you say something out-of-court that incriminates yourself, that is considered trustworthy. Why would you say incriminating things about yourself if they weren’t true? So that’s why a statement against interest is admissible, even though it is hearsay. > [@](#): > > 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? Because in the ordinary course of a criminal case, the only one who’s likely to have made inculpatory statements out of court is the accused. That type of statement is one of the reasons why an individual may move from “person of interest” to “accused.” But that doesn’t preclude the accused from introducing a statement against interest made by another witness, if one can be found. Here’s a hypothetical. Frank and Joe are both low-life hooligans. They know each other a bit and they both happen to be in a corner store at the same time one night. The lady who runs the store gets bashed in the head by someone and dies. Whoever did it makes off with the cash. Frank immediately goes to the cops and narks on Joe; says Joe bashed her on the head; Frank says he had nothing to do with it and just happened to be there. Frank’s ready to testify against Joe. The cops charge Joe, based on Frank’s can-say. Things aren’t looking good for Joe. He denies it to the cops. Says he was looking at the magazines and had his back turned, and didn’t see who did it. But that statement is hearsay. Since it’s an exculpatory statement, it’s not admissible to help Joe. But Joe’s lawyer hires a good private investigator who does some digging. At trial, Frank testifies that he saw Joe bash the shop-keeper on the head and run off with the cash. Then the defence opens. Joe’s lawyer calls a local bar-keep, who runs a bar that Franks hangs out at. The bar-keep testifies that on more than one occasion since the robbery, he’s heard Frank bragging that he was the one who bashed her on the head and took off with the cash, that he’s lied to the police about Joe doing it, and that he plans to perjure himself at the trial to ensure that Joe gets convicted and Frank is home free. Now, Frank’s statements to the bar-keep are not under oath and are out-of-court, so they’re hearsay. But they are clearly statements against Frank’s interest. They therefore qualify under the statement-against-interest exception to the hearsay rule and are admissible in court to impeach Frank’s credibility and to raise a reasonable doubt about the case against Joe. That would be a case of the defence introducing a statement against the intérêt of the witness. However, as I said at the outset, it’s simply not so common for there to be statements against interest made by someone other than the accused, so it doesn’t come up much in a criminal trial. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 17, 2016, 12:22am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/26 "2016-12-17T00:22:48Z")
> [@mmmiiikkkeee](#): > > So I decided to look up the [rules of evidence](http://www.irb-cisr.gc.ca/Eng/BoaCom/references/LegJur/Pages/EvidPreuApp.aspx) 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 … The reason the _Canada Evidence Act_ is pretty short is that in Canada, the rules of evidence are primarily common law. Parliament has never codified them, which I think is the case in the US? Instead, now and then Parliament makes statutory changes to the law of evidence. Those changes are in the Act, which together with the common law sets out the rules of evidence. There are other rules about the testimony of witnesses that aren’t set out in the Act, but rather in the common law ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 17, 2016, 12:23am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/27 "2016-12-17T00:23:02Z")
> [@](#): > > Originally Posted by Zeke N. Destroi View Post > 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. Okay, time for my favorite joke. A farmer sued a truck driver for injuries sustained in a motor vehicle accident. The case eventually proceeds to trial, and the farmer testifies that he was hurt real bad. On cross examination, the defense attorney asks, “Isn’t it true, Mr. Jones, that at the scene of the accident you told Officer Smith that you were fine?” Mr Jones responds, "well, Sir, it’s a funny story. I got up that morning and loaded my finest cow into her trailer and started towards town, we hadn’t gotten too far… Attorney: Excuse me, but I asked you a simple question, didn’t you tell the Officer you were fine? Mr Jones: I’m trying to tell you, that cow and I had just got started down the road when the defendant’s truck came right at us. The trailer and the cow went flying to the right, and me and the truck went off to the left… Attorney: Mr. Jones, please just answer yes or no. Didn’t you tell the officer you were fine? Jones: Well, I was lying there in the ditch when the officer came upon the scene. He went over to the other side first, and saw the cow in a terrible state. He drew his gun and shot her, putting her out of her misery. Then he came over to me and asked me how I was. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 17, 2016, 12:33am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/28 "2016-12-17T00:33:11Z")
> [@Procrustus](#): > > The statement of an adverse party is not hearsay. (because it’s defined that way). This may be a minor point of difference between Canadian and US law. Up north, the statement of an adverse party against interest is still hearsay, but admissible as an exception to be hearsay rule. ---
**Author:** ![Isilder](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@Isilder](https://boards.straightdope.com/u/Isilder)\ **Post date:** [December 17, 2016, 1:24am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/29 "2016-12-17T01:24:04Z")
> [@Zeke\_N.Destroi](#): > > 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. If the witness misheard or misrembers what was said, the defense can play the video and prove what was actually said. What the defense counsel can’t do is ask pushy or interpretive questions like “The video will prove you are a liar, won’t it”. Its pushy because the witness may be simply misremembering. The judgement of why is up to the jury or judge to interpret - of course the prosecutor has to provide the criminal law interpretation of the facts … but witnesses shouldn’t. ---
**Author:** ![Zeke\_N.Destroi](https://avatars.discourse-cdn.com/v4/letter/z/4af34b/32.png) [@Zeke\_N.Destroi](https://boards.straightdope.com/u/Zeke_N.Destroi)\ **Post date:** [December 17, 2016, 1:56am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/30 "2016-12-17T01:56:24Z")
> [@Bricker](#): > > …\* > [@](#): > > **Northern Piper** …\* So, if you say something inculpating (thanks for that word **Piper** ) then it is trustworthy because if it wasn’t true you wouldn’t say it. If you say something exculpating then it isn’t trustworthy because everyone tries to paint themselves in the best light. The law takes a pretty dim, if painfully accurate, view of human nature doesn’t it? 😃 > [@Procrustus](#): > > … \* That kicks ass! > [@Northern\_Piper](#): > > I agree with the submissions made by **my learned friends**** Bricker **and** Procrustus.** Just curious, is the tradition of referring to the opposing council as “my learned friend” strictly commonwealth or is it standard internationally? Thank-you all once again for all of your time and effort. \<– obsequious? I don’t even know the meaning of the word 😉 - I mean no disrespect by omitting the text - I just don’t see the need to quote the entirety of posts one or two above this one. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [December 17, 2016, 5:13am UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/31 "2016-12-17T05:13:23Z")
IIRC the line in the arrest warning in the UK is something like “you have the right to remain silent, but if you fail to mention some fact and bring it up later, the failure to mention it now may be used against you, etc. etc…” Which is their way of saying if you suddenly remember in a year when you get to trial that you were watching telly with granny, then the prosecution can mention the fact that you did not tell them so when you were arrested or for 3 months afterwards. This is the opposite, if I understand it, of the American principle that your failure to say anything when questioned cannot be brought up as part of the prosecution’s case; they can’t ask “well, why didn’t you mention that to the police when you were arrested?” Also, a witness is sworn to tell the whole truth; lies of omission must count for something, and relaying only a part of the person’s statement that radically changes the message of what they said must qualify somewhere under perjury as not the whole truth. Otherwise the police could say “he told me he did … do it.” I fail to see the right to omit some words and not others as anywhere near truthful, no matter what the sequence. (“yes, your honor, he did say those specific words”) > [@](#): > > What the defense counsel can’t do is ask pushy or interpretive questions like > “The video will prove you are a liar, won’t it”. So all those L&O shows where the lawyer for one side or other says “…And I remind you that you are under oath. You do know the penalty for perjury?” That’s total fiction? How disappointing! My faith in Hollywood screenwriters is shattered. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 18, 2016, 8:16pm UTC](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883/32 "2016-12-18T20:16:28Z")
> [@Zeke\_N.Destroi](#): > > Just curious, is the tradition of referring to the opposing council as “my learned friend” strictly commonwealth or is it standard internationally? I don’t know if USian counsel follow the tradition. I believe it’s used in some Commonwealth countries like Australia and New Zealand, but I don’t know if it’s used more broadly in other Commonwealth countries, and former Commonwealth countries like Pakistan. Maybe **AK84** can comment? (And I see in retrospect that I gave them an honorific which is probably not available to US counsel: “learned friend” technically means opposing counsel has a QC. If they don’t, they’re just “my friend.”) > [@](#): > > Thank-you all once again for all of your time and effort. You’re welcome - it was a good question. [Previous page](https://boards.straightdope.com/t/defendant-can-not-use-his-own-statement/774883.md?page=1)