It would not be admissible due to the attorney-client privilege. The attorney cannot waive the privilege; it belongs to the client.
I must complain to the OP. I had a bad night because of him. Tonight, I’ve been private to a former girlfriend’s plans to have two bombs exploding aboard planes in mid-air. Worst, she managed to involve and compromise me, it was not possible anymore to cancel the action, and I had a hard time with the police. Fortunately, I woke up before before things could go completely out of hand, but still… :mad: :mad: :mad:
I am very sorry. I haven’t thought much about it, but it must be very tough to maintain a friendship with a Terrorist or Master Criminal. I mean, besides the confessions and the ethical dilemnas that follow, there’s a laundry list of problems. Fleeing without leaving a forwarding address, late night calls for bail money, the linen they ruin while recovering from their wounds in the spare bedroom, not to mention all thr bandages. My God, the bandages they go through! You can draw a line and refuse to buy C4 for their next bomb, but down deep you just know that buying them bandages is enabling them to buy their own C4.
But suppose the confession to his friend was prompted by witnessing a red stain on his shirt or if his friend also showed him a bloody knife or the victims wallet…
I’m sure that the confession wouldn’t be brought up in trial for the reasons you mention, but the information from the confession would certainly be used during the investigation. Boyo Jim can tell the police what he knows, and the police can investigate further and find other evidence against the friend. It wouldn’t be Jesse James’ confession to Boyo Jim that he robbed the railroad payroll that puts him in jail, but the fact that the sheriff went to Jesse’s house after being tipped off by Boyo Jim and found Jesse counting the money there.
Quoting a friend of a friend is hearsay and gossip.
Hearing it from the friend directly is not.
Dag Otto:
I explained above that an admission is an exception to the hearsay rule.
No. Actually, it can.
Jim tells Bob: “I hope you don’t think less of me as a friend, but last night I robbed a 7-11 and shot the clerk in the head.”
At Jim’s trial, Bob can testify that Jim admitted robbing the store and shooting the clerk. Or, more precisely, Bob can testify, for the purpose of proving that Jim robbed the store and shot the clerk, that Jim admitted to Bob that he robbed the store and shot the clerk.
Why?
Well, let’s start with the definition.
“Hearsay.” Hearsay is an out-of-court statement, offered into evidence to prove the matter asserted in the statement.
Hearsay is generally inadmissible.
But there are some exceptions. One relatively well-known exception is the admission against interest rule. If the out-of-court statement is such that it exposes the declarent (the person making the statement) to penal or pecuniary liability, then it’s admissible. That’s the case in this hypothetical.
If the client tells his attorney, “I didn’t kill nobody” but then shows him where the bodies are hidden…he becomes accessory after the fact.
Grrrr.
In the law, you’ve described what’s known as “totem pole” hearsay, or “hearsay within hearsay.”
As long as each individual “step” on the totem pole is admissible, the totem pole is admissible.
The attorney becomes an accessory after the fact?
Under what theory?
That’s a useful piece of information for a citizen to have, Bricker. We may not be planning to commit any crimes, but we’ve all seen people brag about illegal acts (even falsely, IMHO) that they deem “manly” or otherwise perversely desirable. It’d be sad for them if it were repeated in court and believed.
The take home message, which I’m sure you’ve given many times, is “keep your big fat trap shut” (and possibly “stay our of bars”)
I wonder if I could trouble you for some clarification. In the modern world, “Pecuniary liability” is a pretty broad brush. It often seems there is little that might not open one up to (civil) pecuniary liability. Does “penal interest” cover any unlawful act (e.g. parking illegally, burning trash without a permit, etc.) Are you simplifying for our benefit, or is the exemption actually that broad in practice?
I suppose I should actually be asking the opposite question: Given that exemption, how often does the rule against hearsay actually end up being important in criminal proceedings?
Did I parse that correctly, to indicate that in another case the same or similar hearsay evidence might be admissible for other purpose, such as to impeach Jim’s credibility or character, even if it were not admissible (for some reason) as evidence that Jim did indeed perform the nefarious deeds in question?
I try to read you carefully, because people who know what they’re talking about are rare treasures in discussions like these. I don’t want to bug you about details until you swear of our hypotheticals forever, but I also don’t want to read more into your remarks than you intended.
Out of court statements can either be inadmissable hearsay, hearsay that is admissible because it’s subject to a hearsay exception or exclusion, or not hearsay at all. I think what Bricker is saying is that a statement is only hearsay if it’s being used to prove the truth of the matter asserted; for other purposes, the same statement may not even be hearsay. Jim’s statement is hearsay if you’re using it to prove the matter asserted, namely, that Jim did in fact rob and kill the 7-11 clerk (although it is admissible under hearsay exceptions). However, if you’re using it to prove the fact that Jim was capable of speech, it’s not hearsay. My statement of “Jim just shot me!” would be hearsay if being used to prove that jim shot me, but is probably subject to a hearsay exception of present sense impression or excited utterance. The same statement is defined in the Federal Rules of Evidence as not being hearsay if it’s being used to rebut a charge of recent fabrication–the fact that I made a “prior consistent statement” that backs up my testimony at trial makes it not hearsay by definition if the other side argues that I made my story up recently. If it’s being used just to prove that I was capable of talking even though I’d been shot, it’s not hearsay under any definition.
My favorite illustration is the one about the guy who calls a woman’s house and hears a man answer the phone “party headquarters!” This is how Ted always answers the phone. In court, you could use this to prove that it was Ted answering the phone. If you attempted to use the statment to prove that the place actually was “party headquarters,” however, it would be hearsay. 