Prosecutor Tactic to Avoid Hearsay Objection

In my experience, a common tactic used by prosecutors to get inadmissible hearsay in through the back door usually sounds something like:
Q: Now, officer…you are trained to investigate crimes, correct?
A: Yes. I graduated from the police academy.
Q: And in your training and experience, were you taught to interview eyewitnesses?
A: Yes, they are helpful.
Q: Now, Mr. Smithers was an eyewitness, was he not?
A: Yes, he was.
Q: And did Mr. Smithers tell you who shot Mr. Burns?
Attorney: OBJECTION! Hearsay, your honor.
Judge: Sustained.
Q: Detective, after you asked Mr. Smithers "Who shot Burns", what did you do.
A: I went and got an arrest warrant for Maggie Simpson.

This tactic is frequently used and is damaging to the accused. Criminal defense attorneys should be mindful of this tacitc and be prepared to object to hearsay, even though the answer doesn't repeat the out-of-court testimony.

Hearsay is an out-of-court statement by a non-testifying declarant, which is offered to prove the truth of the matter asserted. § 90.801(1)(c), Fla. Stat. (2011). When an out-of-court statement of a non-testifying witness furnishes evidence of a defendant's guilt, even if offered to show the sequence of an investigation, it is also hearsay. Keen v. State, 775 So. 2d 263 (Fla. 2000)(rejecting the argument that the challenged testimony was not offered to prove the truth of the matter asserted when the investigative sequence was irrelevant); and Wright v. State, 586 So. 2d 1024 (Fla. 1991)(holding that irrelevant non-hearsay purpose does not render hearsay admissible).

If the judge is not persuaded then the attorney should also object based upon relevancy or a 403(b) objection. That is, the investigative steps are not relevant to the case, or alternatively, even if they are, the probative value is substantially outweighed by the unfair prejudice to the client.

Furthermore, this type of testimony infringes upon the right to confront accusers, based upon the Confrontation Clause of the Sixth Amendment of the United States Constitution. In the example described above, Mr. Smithers did not testify at the trial and the defense attorney had no way to cross-examine him in front of the jury. Practioners should also protect the record and preserve the issue on appeal by informing the trial judge that such testimony violates the client's right to confront all witnesses against him.

Out-of-court statements, even if admissible under a hearsay exception, may also violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. See, State v. Lopez, 974 So. 2d 340, 345 (Fla. 2008). In Crawford v. Washington, 541 U.S. 36, (2004), the United States Supreme Court held that admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. Id. at 53-54.

Categories: Criminal Defense

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