What is Hearsay?
Chicago Criminal Defense Attorneys Explain Hearsay
Every great trial attorney, in the preparation and presentation of a case for trial, whether it be a bench trial before a single judge or a jury trial in front of 6 or 12 citizens, whether it be a criminal case or a civil case, gathers together the evidence he or she wishes to present before the court, and then considers the ways to attack the evidence the other side is planning to present. Aside from any tangible evidence (meaning anything physical that can be observed in court in its present state), the vast majority of evidence will be through the testimony of witnesses, sworn under oath or affirmation to be truthful. Sometimes, a witness may not have personal knowledge of events to which they are testifying, but may have heard about it from someone else, and either your lawyer or the other side's lawyer, will want to have the witness testify to what this other person(s) said happened.
This is an attempt to use an out of court, unsworn statement of another person or persons, for the purpose of proving the truth of that which is being asserted. This is called "hearsay", and in its purest form, it is inadmissible in court. Of course, as with any "hard and fast" rule, there are many exceptions, some of which will be discussed here. But, you may ask, why is there a rule against hearsay in the first place? The answer is simple. It is the result of a Constitutional Guarantee that was adopted from the Common Law system of England, as contained within the 6th Amendment, and it states:
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.
The "Confrontation Clause", as it is referred to, requires that anyone that offers testimony against him is subject to cross examination in open court. The problem with hearsay, is that the witness has no personal knowledge of the events testified to, so cross examination would be fruitless, as the real witness is not in court and able to be questioned about the details. Yet, for a variety of reasons, the actual witness is not able to be in court, but the hearsay statements being offered by another witness are essential for one side or the other's case, and the exceptions to the hearsay rule may or may not make it possible to get them into evidence.
Exceptions to the Hearsay Rule
So what are the exceptions to the hearsay rule? This article will not enumerate all of them, but it will address the more common ones: statements against one's interest, excited utterances, "outcry" statements of sexual abuse or assault victims under 13 years of age, and business records. These are the exceptions that criminal practitioners must confront in defending charges for their clients on a daily basis.
Statements Against One's Interest
Statements against one's interest involve any sort of utterance, whether it is verbal, written or gestural (humans do communicate with face, hand and body gestures), that will negatively affect one's personal well-being. The ones that involve you admitting your guilt to a particular offense, or can be used against you to prove your overall guilt, such as "I didn't mean to do it, I was really drunk at the time." These types of statements can be introduced by any witness, whether a police officer, or a civilian, though typically they will be statements made by a suspect to an officer or investigator before or after an arrest.
Conversely, any statements that you make in support of your own interest, especially denying your guilt and asserting your innocence, are deemed hearsay and not admissible. This is why lawyers advise their clients to remain silent in the face of police questioning, for this very reason that anything you say may be used against you in court, yet nothing you say will be used for you in court. Also, your statements may not be direct admissions of any guilt, but in the details of your story, there may be ties to other evidence that then may be used to establish your guilt. As you are unaware of the facts known to the police, you have no way of knowing how what you say may help them against you.
Excited utterances are statements made by a person at the same time/immediately after an event which one would normally associate with an immediate truthful response, such as, "Oh my God, you just shot me!" or "He just stole my car!" Anything that was said as an immediate reaction to the event qualifies. So, a practical application of the rule might work like this: an officer is responding to the scene of an alleged domestic dispute. On the way up the front stoop, he hears a woman's voice yell "stop hitting me", along with the sound of bodies or furniture slamming. He forcibly enters the dwelling, sees a husband and wife, chairs knocked over, and the wife is holding her cheek with her hand, which upon examination, reveals a bruise and a small cut. Among the evidence in court will be the officer's testimony about what he heard the woman say as an "excited utterance".
In sexual assault or abuse cases, there is often what is referred to as "outcry" statements. This is where an alleged victim, under circumstances that would not qualify the statements as excited utterances, nevertheless tells another person of the sexual assault or abuse. The problem with these statements lies in the fact that they are often made well after the alleged event, sometimes months or years after the event, so it is difficult to judge their reliability. In Illinois, a specific law was enacted to permit these types of statements to be used in court in cases involving children under the age of 13 at the time of the alleged incident. Chapter 725, Illinois Compiled Statutes, Section 5/115-10 provides for these statements to be used if, after a hearing, the court is of the opinion that the statements have sufficient indications that they are reliable. This same statute applies to persons of moderate, severe or profound intellectual disability as defined by law in cases of sexual assault. The alleged victim must, in most circumstances, still testify in open court as required by the 6thAmendment, but these statements are admitted for the purpose of bolstering his or her testimony.
Business Records Exception
Business records are also an exception to the hearsay rule because, it is commonly held, that if a document is kept by a business in the "ordinary course of their affairs", and is not prepared in anticipation of litigation, then it may be used as evidence in open court to prove the fact of its content, subject to the laying of the proper foundation for its admission into evidence. Typically, the "keeper of the records" will be called to the witness stand, identify the document for what it is, and explain how and why this record was prepared and kept in the ordinary course of their business.
In criminal cases, the prosecution will often rely upon records from utilities and other service providers to prove that a defendant has control over property, like a home or apartment, as in drug or weapon possession cases, where the contraband was found hidden in the property, and not directly on the defendant's person. Or, they may obtain records from telephone carriers to show the identity of the owner of a certain telephone number that may have been used in the commission of an offense. In DUI cases where a defendant was brought to a hospital for emergency medical treatment after an accident, but no breath, blood or urine evidence was available for crime laboratory testing, the State will subpoena your treatment records, and introduce the hospital lab results of your alcohol and/or drug levels that they obtained during the routine course of your emergency treatment, under this exception to the hearsay rule. Although you may object to the State receiving the entire medical record, after an inspection by the Judge, the State will still likely be given the relevant portions needed to introduce the alcohol or drug evidence in the prosecution against you.
Occasionally, prosecutors will try and stretch the exceptions to the rules to get into evidence that which should not be admitted. For example, we are aware of a case many years ago where the State alleged that a young man was the driver of a car used in a drive-by shooting. At the time of the alleged offense, the young man was 200 plus miles away, visiting a friend (admittedly a member of his gang) in a State prison facility. Among the business records the Defense was able to admit were the sign-in log books from the correctional facility, showing the dates and times he signed his name in the book, establishing the alibi. His particular jewelry he was wearing made him very memorable to the officers working at the sign-in desk, as well as the inmate photographer that took a picture of him and his friend in front of a Hawaiian backdrop painted on a wall. The State, in response, produced a document purported to be the "roll call" of an alleged meeting of the gang that same day, where they allegedly discussed the shooting, which also had his name as appearing at that meeting. Over objection, the State was allowed to get that document into evidence under the business records exception. A jury then found him guilty. In reversing the conviction outright, without a remand for a new trial, the Appellate Court ruled that the document was inadmissible hearsay, as there was no proper foundation to establish the thing was a record kept in the ordinary course of gang business, or that it had any indicia of reliability as a business instrument, given that it was just a bunch of names scrawled unevenly on a piece of paper. The jail records were, however, very reliable business records, and established more than reasonable doubt of the defendant's alleged guilt.
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