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What is Hearsay? Can It Be Used By Prosecutors?

You may have heard the term “hearsay” before. In criminal proceedings, “hearsay” refers to testimony in which the witness is relaying information they received from a third party, and the statement allegedly made by that third-party is being offered as evidence to support either the prosecution or defense. For example, if a police officer testifies that “Jim the bartender told me that he served the defendant 10 beers before he drove away from the bar,” and that testimony is offered to support the state’s Operating a Vehicle While Intoxicated case, that is hearsay and likely would be inadmissible.

Hearsay and the Confrontation Clause

Hearsay is generally inadmissible because of its second-hand nature and the fact that the source of the hearsay evidence cannot be cross-examined. It is a fundamental constitutional right as set forth in the “Confrontation Clause” of the Sixth Amendment that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” When hearsay testimony is introduced at trial and a defendant can’t directly confront the individual making that statement, it conflicts with that Sixth Amendment right.

Exceptions to the Hearsay Rule

However, Rule 803 of both the Federal Rules of Evidence and the Indiana Rules of Evidence contain numerous exceptions to the rule against hearsay, and many kinds of hearsay evidence are oftentimes accepted in criminal cases if they fall into one of those exceptions. These include excited utterances or present sense impressions of an event made immediately thereafter; business records, sworn previous testimony, and statements that are part of public or government documents.

“Testimonial” Statements Inadmissible

Notwithstanding those exceptions, the U.S. Supreme Court has held that the Confrontation Clause bars “testimonial” statements even if they fall within an exception. The most common example of a “testimonial” statement is one given to a police officer by a witness providing information as to the circumstances of a crime. In its decisions, the Court has held that when the primary purpose of such statements is to convey information, as opposed to seeking help with an ongoing emergency, they are barred by the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

Challenging Hearsay Evidence

Even though there is no opportunity to cross-examine the source of hearsay information if ultimately admitted under one of the exceptions to the rule, there nevertheless may be openings for defense lawyers to challenge it in other ways. Perhaps an examination of other statements or transcripts related to the source of the hearsay statement might reveal bias or lack of truthfulness. Or maybe the circumstances surrounding the hearsay statement can be challenged. Additionally, defense lawyers can still raise questions about it through cross-examination of the person in possession of the second-hand information.

Hearsay evidence can pose a genuine problem for defendants, and a good defense lawyer will fight against the admissibility of any hearsay evidence that may hurt their client’s case. Even if a court allows hearsay testimony, an experienced Indiana criminal defense lawyer can still find ways to reduce or mitigate its impact.

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