Saturday, August 10, 2013

Why judges should read The Legal Watchdog

Back in 2011 I wrote a post titled Hearsay 101, and begged trial judges to take the time to learn the rules on hearsay.  I reasoned that trial judges wouldn’t want to have surgery at the hand of a surgeon who doesn’t know basic human anatomy, and defendants don’t want to have their freedom ripped from them because a trial judge doesn’t understand basic rules of evidence.  Unfortunately, after reading the recent decision of United States v. Stern, it is painfully obvious that at least one federal trial judge missed my earlier post.     

First, here is the gist of the Hearsay 101 post: a college student was accused of adult-on-adult sexual assault, and tried to testify at trial that he didn’t rape anyone because the accuser said “yes,” and even suggested several sexual positions and activities.  That trial judge somehow viewed the accuser’s statements as inadmissible hearsay, and therefore figuratively handcuffed the defendant, and literally prevented him from putting on any defense to the allegation.  Without a defense, the defendant was convicted.  However, the trial judge’s error was so egregious that the conviction was reversed.    

As I explained nearly two years ago, when a defendant offers statements of other people to show why he (the defendant) did something (e.g., had sex), those statements are not hearsay.  Rather, they are being offered to show their effect on the listener (in this case, the defendant), and fall outside the definition of hearsay.  (In all honesty, if the trial judge is lucid during the trial, he doesn’t even have to know that much.  Any sober adult should immediately think: “Gee, if I prevent the defendant from giving his version of what happened at the time of the alleged crime, that’s probably not a fair trial; I’d better let him testify.”)

This gross misunderstanding of the basic rules of evidence is, to me, baffling.  And as I wrote in Hearsay 101, and in another earlier post, it is incredibly common and is the most frustrating part of the criminal defense lawyer’s job.  And now, another trial court judge has made the identical mistake in the federal trial of a Wisconsin attorney accused of a financial crime.

In United States v. Stern, a lawyer (Stern) was accused of participating in a financial crime in part for his act of opening up a certificate of deposit (CD) account.  (The details leading up to that don’t matter for our purpose.)  Stern testified at his trial and wanted to explain why he opened up the CD account, which would have demonstrated that he had no nefarious purpose or intent.  Imagine the horror for the lawyer-defendant (and his trial lawyer, for that matter) when the judge wouldn’t let him explain why he did what he did:

Q. [Stern’s lawyer]. Do you recall going to the bank on [March 3, 2006]?
A. Yes, I do.
Q. And how did that come about?
A. Well, about three days or so before—
Government: Objection. Calls for hearsay answer.
Stern’s lawyer: Not for the truth of the matter asserted, Judge. As to impact on him.
Government: That’s not an exception to the hearsay rule.
The Court: Yes. The Court will sustain the objection.

Q. Prior to going there on March the 3rd, 2006, did you have an understanding of what was asked of you for you to go to the bank and purchase C.D.’s [sic]?
A. Yes.
Government: Objection. Calls for a hearsay answer.
The Court: It does, and so the objection will be sustained.

Q. And you having control of [your codefendant’s money] was to serve what purpose?
Government: Objection. Calls for hearsay answer.
The Court: That will be sustained.  

First, Stern’s lawyer got it exactly right.  Just as in the rape case discussed in Hearsay 101, and in the other botched case discussed in this earlier post, the defendant was not offering the statements of another person—to the extent his answer would have even included statements of another person—for “the truth of the matter asserted,” which is the very definition of hearsay.  Rather, as his trial lawyer explained, he was offering them “as to impact on him”—that is, to explain why he went to the bank to open the CD account.

Second, reading through the remainder of the dialogue (where Stern attempted to tell the jury why he opened the CD account), you can see that the prosecutor and the trial judge lack even the most fundamental understanding of the rules of evidence and the constitutional right to present a defense.  Given this recurring theme, I’ve definitely given up hope for a more sophisticated judicial understanding, such as appreciating the difference between statements that satisfy “an exception to the hearsay rule” and statements that fall outside the definition of hearsay altogether.  But the lack of basic understanding demonstrated here is horrifying—again, think of the surgeon who doesn’t know basic human anatomy—and this is a very real risk that every defendant (whether truly innocent, guilty, or guilty of some crime far less severe than what the prosecutor charged) faces when he or she decides to exercise the constitutional right to a trial.

Fortunately, Stern's conviction was reversed.  The appellate court held:

[E]ven if Stern was planning to repeat something [his codefendant] told him about why he should go to the bank and purchase the CDs, that kind of out-of-court statement is not hearsay. That is because Stern would not have been repeating the statement to establish the truth of what [his codefendant] said. A witness’s statement is not hearsay if the witness is reporting what someone told the witness and what the witness thought she meant, and that statement is offered as an explanation of what the witness was thinking at the time or what motivated him to do something. . . . In our case it is more likely that Stern would have reported [his codefendant’s] out-of court statements to show that they were untrue and that they misled him by hiding the real purpose for purchasing the CDs. This testimony falls outside the definition of hearsay, and the court abused its discretion by excluding it. . . . The court’s error was not harmless, because the excluded testimony was central to Stern’s defense.

So, first, congratulations to the appellate court not only for getting this right, but also for reversing the conviction instead of labeling this a “harmless error”—something appellate courts often do to avoid giving defendants a new trial.  Second, congratulations to Stern’s trial lawyer for (in my opinion) preserving the record and accurately stating why Stern should have been allowed to answer the questions.  (This is often not as easy as it seems.  When prosecutors make these crazy objections and judges make these unimaginable errors at trial, the defense lawyer’s reaction is often pure shock.)  Third, congratulations to Stern’s appellate lawyer Ellen Henak for her outstanding work in the incredibly hyper-technical and difficult world of criminal appeals.  Fourth, congratulations to lawyer-defendant Stern.  Even though the prosecutor’s hyper-aggression and the trial judge’s failure to understand basic legal principles have, to this point, cost you dearly, this reversal is a huge victory for you on numerous levels.

And fifth, to all the trial judges out there: start reading The Legal Watchdog.


  1. The denial of a defense is only one element of a case that was not based upon sufficient evidence and was based on the prosecutor's "belief" that I was guilty. Thus loss of reputation; suspension of law license; and loss of liberty. In fact there was an exploitation of the fact that I am a lawyer and should have known that a lady friend was committing fraud. "The first thing we do is kill all the lawyers." (Dirk the Butcher). This case should send a chill down the backs of any trial attorney who has stepped on toes during his or her career and is not a member of "the good old boys network". This case is still pending - another trial is scheduled for March 3rd.

  2. I think you hit the problem right on the head: prosecutors think they have the ability -- or for the religious among them, the gift -- to "know" who is guilty despite the lack of evidence. A lot of innocent people are in jail (or worse) because of this mindset.