Been doing more legal reading…interesting but baffling…
To my complete-legal-layman ears, hearsay sounds kind of like the NFL definition of what a “catch” is and isn’t; something that’s simple yet maddeningly hard to define.
Couple of questions:
Is a defendant’s own words hearsay if reported by someone else? Say John is an arsonist and tells Alice, “Yes, I burned down that building.” In court, Alice reports, “John told me he burned down the building” - that is still hearsay, since Alice is the one making the statement, not John himself, right?
Is testimony from another legal proceeding hearsay? Say (hypothetically) there is some US law that makes arson illegal not just at home but also abroad. Then if John torched a building in France, and was prosecuted under French law (with French witnesses testifying,) could a U.S. court just take those French witnesses’ statements verbatim and ‘recycle’ them for use in American court, or does it have to be “freshly produced” testimony in US court by the French witnesses themselves, all over again? (maybe hearsay isn’t even the term I’m getting at)
Can hearsay be used at the earlier stages to determine whether to bring charges against someone in the first place (but cannot be used during an actual trial itself unless there are exceptions,) or is it barred even at the earlier prosecutorial stages?
Statements by the defendant are not hearsay. It is almost always reported by somebody else.
For example, Washington Evidence Rule 801(d) Statements Which Are Not Hearsay. A statement is not hearsay if–
(2) Admission by Party-Opponent. The statement is offered
against a party and is (i) the party’s own statement, in either
an individual or a representative capacity or (ii) a statement of
which the party has manifested an adoption or belief in its
truth, or (iii) a statement by a person authorized by the party
to make a statement concerning the subject, or (iv) a statement
by the party’s agent or servant acting within the scope of the
authority to make the statement for the party, or (v) a statement
by a coconspirator of a party during the course and in
furtherance of the conspiracy.
This is a hearsay issue, and there is an exception which could apply if the conditions are met,.
ER 804:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against
whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Right, but since, technically, it is Alice (witness) who is making this statement in court, not John himself (defendant), it is still hearsay? It is not like John himself is saying in court, “I burned that building,” it is Alice saying “John told me he burned down the building.” This is the part that has me befuddled.
There can be multi-level hearsay. Alice could have told Betty what John had said.
But in your example, Alice, in court and subject to cross examination, is repeating an out of court statement from John. It is John’s words that have to be evaluated under the hearsay rules.
There are many ways a hearsay statement can be offered, but it is certainly common for it to come in through a witness in court. “My doctor told me I ate a bad burger.” “My boss said I didn’t get the job because I was white.” “My cellmate told me he always hated his neighbor.”
It may help to know, if you are trying to figure out how to tell if something is hearsay, that the party opponent rule is just defined out.
Hearsay is an out of court statement offered for the truth of the matter asserted. So Alice repeating John’s arson statement would fit. But, there’s a separate part of the rule that just defines statements by a party opponent as “not hearsay.” This is different from an exception. It’s just defined out.
The prior testimony one is an exception. There are typically conditions attached to exceptions.
For your question about how Alice comes into it, it may help to know that jurors might be instructed when a statement like John’s arson statement has been admitted, that they should first decide if the statement was in fact made, and accurately heard and reported. So, essentially, first decide if you believe Alice is truthfully and accurately reporting something she actually heard.
As I understand the hearsay rule, it can’t be used as the sole basis for the finding of critical facts. So if hearsay is the only evidence, that may not be good enough. However, if its backed up by some other objective facts (John was seen leaving the area in a hurry) by other witnesses then that probably changes the value of the hearsay.
Hmm, that may depend on jurisdiction and type of case, but it’s an example of why it’s important that party-opponent statements are not hearsay. So John’s statement isn’t hearsay. Corroboration rules that apply to hearsay would not apply to it.
There’s a different rule in some jurisdictions about confessions needing to be corroborated, but that’s not a hearsay armissibility rule
Situation 1 is certainly hearsay, but it may well be admissible anyway because of the Statement against interest exception:
The idea is, I think, that John admitting that he set the building on fire is so surprising that Alice’s recounting of the statement should be considered reliable.
As to question 3 (can prosecutors and police use hearsay in their investigations?) I am fairly certain that they do. If a confidential informant that the police have found to be reliable tells them that John burned down the building, they are going to ask John some questions. Similarly, prosecutors use lie detectors regularly, even though they can’t introduce polygraph in court, because they don’t work very well.
Not true in any U.S. jurisdiction I’m familiar with. If the hearsay statement is admissible, it’s as good as any other evidence.
You might be thinking of t he corpus delicti rule, which states (simplifying) that a confession alone is not sufficient to convict without other evidence of the crime.
This is wrong. If offered by the prosecution/plaintiff the statement is not hearsay under rule 801 and state analogues, as the statement of a party opponent. There is no need for an exception because it is not hearsay.
Rule 804 provides an exception for a statement against interest, but it is an exception that applies to hearsay statements, which this is not. It also requires that the declarant be unavailable, and some other requirements.
So if John goes to the police station on his own and confesses to arson, that isn’t enough to convict, but if Alice later on in court says, “John told me he burned the building,” that is evidence that can go towards conviction?
IANAL - This is what I recall from a previous thread. The key here is the “against a party”.
If John tells Alice “I didn’t do it” - well, whether he did or not, what would you expect him to say?
OTOH, if John says “I did it”, then likely it is the truth since why would he admit to a crime he did not do?
Yes, we can pull plenty of reasons why out of our butt, but in general, a guy who admits or boasts of a specific crime (“Against interest”) probably is telling the truth. It is now up to him to figure out how to explain why what he has said earlier is false.
He cannot enter into evidence claims where he told someone he did not do it, because the only way to verify that he himself claims innocence is for him to testify. He can’t get his “version” into the court record without actually testifying himself.
I assume this is why third-party hearsay is also not allowed? If Jane says Alice told her that John confessed to her (Alice) then they need Alice to say so on the stand, not Jane. Jane can then testify about it only to prove that yes, Alice told her (Jane) this the day it happened so she’s not making up a new story; but not as new evidence from Jane that John is guilty.
In my state (which is not in the USA) ‘verballing’ was finally outlawed around ?? 10 ?? years ago, after centuries of abuse. Now the police have to produce some other evidence that ‘John told me he burned the building’. At least a signed statement, but normally a recording. But if Alice is not a member of the police force, it would just be her credibility against John’s. That also sometimes leads to some very dodgy convictions.
Well, you need to deal with each layer of hearsay individually. So, John’s statement is still an admission by a party opponent, and then you need either a reason why Alice’s statement to Jane is not hearsay, or an exception.
Alice doesn’t have to be the intended recipient. That’s not part of the analysis.
(it may go to the weight of the evidence, as she might be cross examined about the fact she only heard half of the conversation and might be taking things out of context, for example)