Actual case I’m fighting in municipal court so here in IMHO.
You are not my attorney. I pay for an attorney service so I have advice but he is not “my attorney”.
Neighbor made a complaint and made a statement to a police office. BTW the neighbor’s statement is full of inaccuracies but that’s not the point. The cop used that information to issue a citation that I am fighting. The cop did no investigation work, relying solely on the neighbor’s rant and put it in his report. So clearly I can get the neighbor’s statements excluded based on hearsay right?
Not so fast the attorney said. Since those statements were collected as part of his duty there is a hearsay exemption. As I sit here and think about it, that’s gotta be wrong, right? I mean I tell the police my neighbor kidnapped the Lindburgh baby with no proof and not making the statement under oath, how can it being in the cop’s report make it evidence in court?
I mean, isn’t that a violation of the Confrontation Clause if the neighbor’s statements are entered into evidence via the police report and I can’t challenge the accuracy of it since the neighbor didn’t testify?
I’m not a lawyer but normally at least in the grievance arbitration context “hearsay” can’t be used as the sole basis for the finding of critical facts. Unless of course there’s other corroborating evidence. Hearsay can be used as evidence “this is what I was told” so it can be used as truth that I was told that but not “truth of the contents”. Sometimes, however, hearsay can be used if it’s an “admission against interest” as in the jail house snitch situation. Again, assuming the veracity of the jail house snitch can be corroborated.
I am totally not a lawyer, but I found the question interesting.
Based on what I found on-line ( so take it for what it’s worth ), your friend is both right and wrong.
Yes, there is a business records exception for a police report. It can be used as evidence of what the officer witnessed, things like what direction the vehicle was facing when the officer reached the scene.
But the witness statements contained inside the police report are still hearsay unless another exception can be found.
There are lots of exceptions, apparently- the article below lists 4 and I can think of a couple more.
Here’s the source I mostly used - you’re from New York, right?
I am not your lawyer, nor am I offering any legal advice.
That said, if I were you, I’d check out Davis v. Washington and Crawford v. Washington. They are two cases that deal with testimonial evidence being inadmissible in violation of the Confrontation Clause. Davis, in particular, lays out why your neighbor’s statements to police should be excluded. Maybe printing out the cases for the hearing officer might impress them too. The cases also deal with the issue of unavailability of the witness (they should have to establish why the neighbor isn’t testifying before being allowed to use the report.
I’d be surprised if the prosecution didnt have the neighbor there to testify. Prepare for that too.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;to be confronted with the witnesses against him;to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
I am a lawyer. Not your lawyer and this is not to be construed as legal advice.
It’s not hearsay. Depending on what a “citation“ is in this circumstance. If it’s just an official “now cut that out”, then no it’s not. Read below.
Hearsay is an out of court statement which is being adduced for the truth if it’s contents. You were issued a citation on the basis of a complaint. Which the officer heard. It’s being offered NOT for truth but as to why the officer felt he was justified in citing you, he has the record of a complaint, which he heard. If he had heard from a third party that your neighbour was complaining about noise, that would be hearsay.
Now if the citation is that it’s a sort of a summons and officer went to Court to get a finding against you then what he wrote would be hearsay unless the complaint maker also appears in which case the contents of his report as to the statement would be admissible.
The statements in the citation are giving the basis for why the citation was issued. There are actually two layers of potential hearsay here. The report or citation, and the neighbor’s statements in it. To actually prove the thing the citation accuses you of, the prosecution is probably not going to try to offer the report at all. They would call the neighbor (and probably the officer) as witnesses.
The statements in a police report are not hearsay for the purpose of showing that the officer received that information, which was the basis for a citation.
It doesn’t sound like that’s what you would be contesting, right? You’re saying, “I didn’t do those things,” not, “those things do not violate the law,” right?
A police report cam give a potential preview of how a witness might testify at trial, though. So if it is false, it might be helpful to look at it and see what can be disproven or called into question.
Both. The neighbor claims I leave almost every day at 3 until night and the dogs bark constantly while I’m gone. The truth is I work one job from home and have since mid-March and most days I don’t leave the house. So the dogs don’t bark all of the time
The other point is that the law is vague. What does “habitual” barking mean? What does “in excess of time” mean? Does the officer witnessing one occasion for the dogs barking “about” 10 minutes violate the law? Does the statement of the neighbor that they do it every day (but they don’t) make it true?
And line up any neighbors who are also home at that time who can say, nope I don’t hear AK84’s dogs barking like that.
Saint_Cad, it doesn’t sound like you are contesting that the citation could be issued based on what the neighbor said. (If the officer believed the neighbor, then he had reason to issue the citation.)
Agreed. It is double hearsay, which is still admissible if you find an exception for both layers of hearsay. The report itself is hearsay as it is an out of court statement by the police officer for the truth of the matter asserted therein, but it falls under the business records exception. However the contents of the report (assuming it is the officer writing down what the neighbor said) seems to be pure inadmissible hearsay.
The neighbor should have to come to court to testify. However, you can impeach him with his prior statement if he tells a different story.
If the officer didn’t witness the violation, did he just sign the complaint on behalf of the neighbor? If so, its the neighbor’s case to prosecute and the officer isn’t even a witness. At least around here, the neighbor would be called in to sign the complaint.as officers may not for ordinance violations not committed in their presence. This is true for disorderly persons offenses (with some exceptions) as well.
Off topic a bit but with that said, incessantly barking dogs dogs are a real PITA. Even if its not constant all day long, having the neighbors dog barking every morning at 7:00 AM for fifteen minutes non-stop tends to raise one’s blood pressure. Our summer neighbors plan on moving down full time soon. A different neighbor approached the “summer” husband and voiced their concerns. He replied something to the effect of “If I don’t let him out on the porch (where be barks at every passerby), he wakes my wife up”. We live far enough away that, with the windows down and AC on, we don’t hear too much. I feel bad for the people who live right across the street from them.
It is hard to say. It is a violation if A or B occur. Violation A is what the summons seems to indicate but the officer only witnessed B and even that is questionable based on the vagueness of the statute.
I’ve seen people say that before, but what does it actually mean? Does it mean that the person who is stalking me or who shoplifts from my store is free from consequences as long as they 1) don’t cross the line between misdemeanor and felony and 2) manage not to do it right under an LEOs nose? Does it mean an officer gives the person a date to appear in court? I don’t know , probably in large part because in my state police officers can arrest for misdemeanors not committed in in their presence
It just means that if an officer didn’t witness the misdemeanor, he or she must go to a magistrate or judge and get an arrest warrant first, not that the guy gets off scot free.