The experienced criminal defense lawyer’s worst nightmare is having a great case with great evidence of innocence, and then being shut down by the trial judge who won’t let you present that evidence to the jury. (Inexperienced criminal defense lawyers, on the other hand, don’t yet have this fear; they still operate under the assumption that judges will know and follow the law.) The single biggest source of this fear is judicial misunderstanding of the hearsay rule, which was on full display in State v. Prineas.
In Prineas, the trial judge’s ruling wouldn’t have earned a passing grade on even the most basic law school exam question. In that case, the defendant was charged with sexual assault after some drunken, post-party sex with the alleged victim. The alleged victim testified that, during the incident, she said no to the sex. The defendant, on the other hand, wanted to testify that the alleged victim had actually said yes to the sex, and she even suggested certain sexual activities and positions. This would prove, among other things, that the alleged victim consented to the sex and the defendant, therefore, wasn’t guilty of sexual assault.
Although the alleged victim was allowed to give her version of what she said, the trial judge prevented the defendant from giving his version of what she said. The reason? The judge mistakenly believed that her statements, if repeated by the defendant, would be hearsay.
Hearsay is defined as “a statement . . . offered in evidence to prove the truth of the matter asserted.” However, there are nearly forty exceptions to the hearsay rule. And what the judge missed is that once the alleged victim testified in court that she told the defendant no, then her prior statements that are inconsistent with that testimony are not hearsay. These include her statements where she allegedly said yes, and her other statements indicating that she willingly participated in the sex acts.
This might sound a bit convoluted. But keep in mind that judges have had three years of law school including at least one entire course dedicated to the rules of evidence. So a judge not understanding basic rules of evidence (such as the definition of hearsay) is akin to a medical doctor not understanding basic human anatomy.
And it’s really not that complicated anyway. Assume that you are charged with a crime for stealing my car. I testify at your trial that you took my car without my consent. Shouldn’t you be allowed to tell your side of the story? What if I really said “here are the keys to my car; you can borrow it”—shouldn’t you be allowed to present that defense? Of course you should. That’s part of your basic, fundamental, constitutional right to defend the allegations against you. And further, the evidence that you would want to present—that I gave you the keys and agreed to let you borrow the car—is highly relevant. This evidence would show that I consented to you taking the car, and also that you didn’t intend to steal the car—two facts that, if believed by the jury, would result in your acquittal.
Fortunately, in Prineas, the appellate court recognized the judge’s gaff, and further found that it was too important of an issue to be labeled “harmless error.” The defendant, therefore, will get a new trial where he can present his side of the story to the jury. But shouldn't these judicial gaffs on such simple matters be avoided in the first place? Doing it right the first time sure would save a lot of time, money, hassle, and wrongful convictions. And this is a recurring problem. Here are perhaps the three most common ways that trial judges botch the law on hearsay when defendants try to put on a defense:
- Prior inconsistent statements: As we saw in Prineas, when a witness testifies about a topic, the defense can introduce the witness’s prior inconsistent statements about that same topic. (For more details about being “subject to cross examination concerning the statement,” see ¶ 18 of Prineas.)
- The truth of the matter asserted: Hearsay includes only those statements offered to prove the truth of the matter asserted in the statement. If the defendant tries to introduce a statement that contains no assertion (for example, a question), or a statement that asserts something that is, in fact, false, then the statement is not being offered for the truth of the matter asserted within it, and is not hearsay.
- Effect on the listener: Often, regardless of whether a statement asserts a fact, and regardless of whether the fact asserted in the statement is true, defendants may offer statements to show the effect that the statement had on them. For example, an alleged victim’s earlier statement to a defendant that “I’m going to come to your house and kill you” might prove the truth of the matter asserted in the statement, but it is also evidence of the defendant’s state of mind and can be used to prove, for example, that he acted in self-defense.
These are not difficult concepts, and there’s no excuse for judges not understanding them. But these three bullet points are just the beginning; there is no shortcut for understanding the hearsay portion of the evidence code, which consists of a mere six pages and includes definitions, the general rule against hearsay, and the forty-or-so exceptions to that rule. (Some statements are more accurately described as falling under an exclusion from, rather than an exception to, the rule against hearsay, but the result is the same: the defendant must be allowed to introduce the statements in his defense.)
Just as a judge would fear being treated by a doctor who doesn’t know basic human anatomy, criminal defense lawyers fear having trials in front of judges that don’t know basic rules of evidence. Prineas should be an embarrassment to that trial judge, and a cautionary tale to all other trial judges: first, read your rules of evidence; second, use your own money to buy a copy of Dan Blinka’s Wisconsin Practice Series: Wisconsin Evidence (West Publishing, 3d Ed., 2008); and third, read and understand his chapter on hearsay. We defense lawyers will have fewer nightmares if you do.