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.

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.