Let’s say there was this purely hypothetical situation where someone is accused of a crime and they go on television several times and seemingly admit to several elements of the crime they are accused of. What is the method that is needed to introduce the interview as evidence? I’m assuming that fact that the defendant did it voluntarily means it’s not against his right against self-incrimination. It’s not hearsay because he’s on video. Would the prosecutor have to call the interviewer as a witness to put the tape into evidence? Can it just be introduced during the investigator testimony?
On a slight tangent, would the unedited footage need to be available for the interview to be allowed? Could the network fight turning over the unused footage?
This is obviously coming from things happening to Trump. As long as the answers are factual and pertaining to the question just mentioning him as part of the answer should not run afoul of the FQ rules.
You are correct that it’s not hearsay. The people who wrote the rules decided that statements of an opposing party are not hearsay. (rather than a hearsay exception, but it works out the same either way)
For a video or photo to be admissible, however, proper foundation must be laid. In this case, someone has to say, “yes that’s the defendant and what is says on the video is accurate recording of what he said.” It can be anyone who was there, and doesn’t have to be the photographer. In the old days, it was a pretty routine thing, these days of AI and deepfakes, I suppose the foundation requirement has more significance.
ETA: It’s not hearsay even if it’s not on video. That video doesn’t affect the hearsay analysis.
Typically, one party or the other would subpoena the raw footage. Typically, the TV station doesn’t fight the subpoena. There are always exceptions, however.
I wonder if someone talking about it, say, in an interview, not only claimed certain things… but when the interviewer asks “would you testify to that under oath?” and the alleged perp replies “yes” can that video be admitted at trial? I assume the prosecution cannot draw attention to the fact “Note, ladies and gentlemen and others of the jury, he has not then testify under oath.” Or would be simply playing the bit “I would testify to that under oath” prejudicial and so not allowed?
If the defendant decided not to testify at trial, I believe most judges would exclude any pre trial statements about being willing to testify at trial as inadmissible because it draws attention to this exercise of his fifth amendment rights.
IANAL. How would it be admissible unless that foundation included verification that what he said is actually true? Can’t he refute it later by just saying, “Oh, I wasn’t under oath, that was just to create a sensation for the media frenzy. My supporters eat that shit up.” I would think that even confessions recorded covertly in private conversations would be difficult to admit unless there was something to corroborate it (notwithstanding all those movies I’ve seen).
Sure he can - but the judge/jury doesn’t have to believe it. The foundation has nothing to do with whether the contents of the statement are true - the foundation has to do with the video, How was the video recorded, is the copy in court a true and accurate representation of what was actually recorded and so on. Some corroboration is likely to be needed for a criminal conviction - but that’s a separate issue from whether the video is admissible.
The rationale for the rule is that people don’t usually say things aginst their interest unless they are true. It’s admissible, but he can try to wiggle out from under it, and the jury will ultimately decide.
Right, as Doreen said. If the video is admitted, then it’s a question of credibility for the jury: do they think that the admission against interest is genuine?
And, the defendant can’t just tell his lawyers to say “I make that up for my supporters”. If the defendant wants to explain away the videoed statements, some witness has to provide evidence that the defendant didn’t mean it - and that usually is only the defendant who can say that, by testifying, and opening himself up to cross-examination on all issues by the prosecution.
As I understand, foundation involves proper evidence that it is actually the defendant speaking, and that is exactly what he said without the tape being doctored or edited so it is taken out of context, when it was said, etc. (Should the defense want to challenge its validity).
Hearsay is only vaguely tied to truthfulness in the sense that the rules of evidence are based on whether given categories of statements are likely to be true. The law considers statements by a party which are damaging to that party’s case are likely true (or may be helpful to show that other statements are not true).
So if someone rear ends you and then apologies for causing the accident, you can testify about the apology. Bear in mind that only the opposing party can use this exception. The person who made the statement cannot offer a previous consistent statement as evidence that his current testimony is true (or as direct evidence).