Hearsay Evidence 11/18/19, 1:53 AM

Nevada Attorney General Aaron Ford State Agencies State Jobs ADA Assistance

The New Rule on Hearsay Evidence

This edition of Legal Briefs concerns how the Supreme Court of the United States
looks at hearsay evidence, and how the Court's interpretation of hearsay evidence
has changed. Hearsay, of course, takes place when a witness testifies to a statement
he or she heard someone else make. The Sixth Amendment to the Constitution
guarantees that criminal defendants have the fundamental right to "confront their
accusers". Core to a defendant's right to "confrontation" is the ability to cross
examine the witnesses that testify for the State.

In a case where the color of a robbery getaway car is an important issue, for
example, a witness who takes the stand and testifies that her sister told her that the
car speeding down Elm Street was dark blue would be testifying to what she heard
another person say. The primary problem with hearsay testimony, testimony that can
be thought of as "second generation" statements since the primary witness is not
the person offering the testimony, is that the other party to the case, is typically that
the defendant, is unable to cross examine the original observer and maker of the
statement, the person courts call the original declarant, to see if his or her
perception and memory of the event are clear and unbiased. In this example, if the
observer's perception of the car was poor because of bad lighting conditions or the
quickness of the sighting, these facts cannot be obtained by cross examining a
second generation witness.

In addition to the Sixth Amendment's definition of hearsay, all states have statutes
that limit the use of hearsay evidence. The Supreme Court had always held that
hearsay for Sixth Amendment purposes was defined the same way as it was under
the general statutory definitions: testimony in court, or written evidence, of a
statement made outside of court when the statement was offered as an assertion to
show the truth of matters asserted in the statement.

But in 2004, the Supreme Court of the United States radically redefined the
constitutional definition of what hearsay evidence is under the meaning of the Sixth
Amendment, and decided for the first time that constitutional hearsay is different
than statutory hearsay. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme
Court held that the Confrontation Clause of the Sixth Amendment only forbids
certain kinds of hearsay against a criminal defendant, and that other kinds of hearsay
evidence were no longer inadmissible under the Confrontation clause of the Sixth
Amendment.

In Crawford, the Supreme Court held that, for confrontation clause purposes, there
are two kinds of hearsay-"testimonial" hearsay and "non-testimonial" hearsay. The
Court defined testimonial hearsay as hearsay evidence collected or gathered by
state agents like police investigators for the purpose of a prosecution. Under this
definition, if the police interview a witness, and the witness then becomes
unavailable for the trial, calling the police investigator to tell the jury what the witness
said in her statement would constitute testimonial hearsay, and would constitute a
violation of the defendant's Sixth Amendment right to confront witnesses. In
Crawford, the Court engaged in a detailed historical analysis of English hearsay
evidence and its treatment by courts reaching back more than 300 years, and
likened testimonial hearsay to affidavits and ex parte (one sided) interrogations
conducted by magistrates for purposes of gathering evidence for prosecutions for
the Crown. The Court said that it was the evidence-gathering function of testimonial
hearsay and its abuses that concerned the Founding Fathers when they drafted the
Sixth Amendment.

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Sixth Amendment.

However, and this change is core to Sixth Amendment jurisprudence, all other kinds
of hearsay-that is, all non-testimonial hearsay-no longer falls within the hearsay
protection function of the Sixth Amendment. This is the case when the hearsay
statement is not made to a police agent who is in the process of gathering evidence
against the suspect. For example, if a witness had made a statement to a neighbor or
a co-worker, and then became unavailable for the trial, it would not violate the
defendant's Sixth Amendment rights for the prosecutor to call as a witness the
neighbor or co-worker to testify regarding what the original declarant told him.

Crawford, then, represents a revolutionary change in the way the federal courts view
hearsay testimony and the operation of the Confrontation Clause. The import of
these changes lies in the effect they will have in the way police agencies conduct
investigations when it is suspected that the original declarant might not be available
for trial, as in the case of young child victims.

If an investigator obtains a statement from a child victim, and then the child freezes
on the witness stand or cannot testify out of fear or intimidation by the sterile, and
public, courtroom setting, former case law emanating from the Supreme Court often
allowed the detective to testify concerning what the child had told him, if the trial
court judge made a finding that the hearsay testimony was especially reliable, or had
"indicia of reliability" in legal lingo. This is no longer the rule, and there is now an
absolute bar to the admission of testimonial hearsay. On the flip side, non-testimonial
hearsay is no longer inadmissible under the Sixth Amendment. So the bottom line is
that the Supreme Court at the same time strengthened the defendant's protection
from the admission of testimonial hearsay and loosened the Sixth Amendment
protections against the admission of the other kind of hearsay-non-testimonial
hearsay.

Finally, it must be remembered that there is one last wrinkle to the calculus: State
statutes and court rules regulating the admission of hearsay testimony are still in
effect, and these laws often provide criminal defendants with additional protections
against the admission of hearsay testimony. So when an analysis is being conducted
to see if a certain hearsay statement can be admitted against a defendant, its
admissibility must be analyzed under both the new constitutional standard set forth
in Crawford, as well as under State statutes and rules that further regulate hearsay.

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