Gathering evidence to prosecute a criminal case is a long and painstaking endeavor. It’s a natural temptation for a prosecutor to rely too heavily on evidence that may be less than reliable. Fortunately, the Federal Rules of Evidence exist to guard against human shortcomings. And, just as fortunately, those same rules allow for exceptions to the rule when common sense justifies it.
A good example is the use of hearsay evidence in criminal proceedings.
In a nutshell, the hearsay rule disallows secondhand information into a trial. The objective is to ensure that the jury’s perceptions of the case are not tainted by evidence that is unable to be corroborated or cross-examined.
To qualify as hearsay, a piece of evidence typically meets 2 criteria.
1. Not directly heard from source
The first criteria is that it was not heard directly from the source. Let’s consider an example from the TV police dramedy, Monk. The private investigator is told by a terrified wife, “My husband is going to kill me.” So far, this is fine because the person who heard the threat is the one reporting it.
On the flip side, no crime had actually been committed. Later in the episode, the husband followed through on his threat. Where to go from here?
The woman, obviously, could not testify. But neither could the fictional Adrian Monk, because he had only heard the threat secondhand. Monk’s testimony could be—and was—used as the basis for a police investigation that eventually garnered usable evidence.
But at the outset, it was simply hearsay and unable to stand alone as the basis for prosecution.
2. Person giving hearsay testimony isn’t in court
The second criteria is that the person giving the hearsay evidence is not in court. If the best friend of the defendant who had the secondhand information were on the witness stand, then the defense would have an opportunity to do cross-examination.
The jury could be shown clearly that the witness had not actually heard the statement and could make up their own mind regarding the credibility of the witness in the context of the other evidence. This requirement ultimately ties back to the Sixth Amendment of the United States Constitution, which gives the defendant the right to confront the person accusing them.
You need information directly from the source or they at least have to be in a court and subject to cross-examination. The rationale for the rule against hearsay evidence is an obvious one—to prevent anyone from being convicted on a statement that lacks reliability.
There are circumstances though, when evidence that might be considered hearsay ends up as admissible. Rule 803 of the federal code details these occasions. The most prominent examples are as follows.
Strictly speaking, an official record is testimony from the person who collected the information. Let’s say the case we’re talking about is murder and it was done with a handgun. The prosecution can subpoena a list of licensed gun owners without having to bring in the official in charge of this information to testify. The public record is considered reliable on its face.
The same is often true of official records for private business—such as meeting minutes from a Board of Directors.
Let’s return to our example from Monk. What if Monk had gone to the woman’s house, found her dying and with her last breath, she utters, “My husband did it.” This is considered admissible.
Why is this statement allowable, but her previous warning to Monk that her husband planned to kill her wasn’t? The reason goes to state of mind. In the eyes of the law, the woman is seen as less likely to make something up in her last moments.
Whether that is an accurate assumption is a matter of opinion and subject to reasonable disagreement, however it is the law.
This exception is built on the same logic as the dying declarations one: a person is in a situation where they are unlikely to be able to concoct a lie. An example is a person making a 911 call and reporting that Person A is killing Person B.
Even if the person making the call isn’t subpoenaed at trial, the call recording can be introduced. Of course, Person A’s legal defense team can challenge the caller’s knowledge of who was actually committing the crime, but the jury is allowed to hear the recording without necessarily hearing from the person who made the call.
It’s easy to believe secondhand evidence anytime you believe strongly in something and haven’t had the chance to consider opposing views. It’s natural that a prosecutor’s legal team, gathering evidence and believing in the justice of their cause, might assign hearsay evidence more weight than it really deserves.
That’s why the Federal Rules of Evidence are there, to guarantee that juries decide a defendant’s fate based on the most reliable information.