HEARSAY

It is a generally understood legal concept that testimony in court should be firsthand – what the testifying witness herself saw, heard, and knows.  That witness can then be cross-examined to determine their veracity, memory, reliability, etc.  With few exceptions, witnesses are not allowed to come in and say what someone else said or saw, because there is no way to  cross-examine the original witness when the jury hears the evidence second-hand.  In general, it is considered unfair to allow this kind of evidence into court, so it is not admissible.  This is known as the hearsay rule, and as soon as someone in court starts to repeat what someone else said, a lawyer is likely to pop up and say, “Objection! Hearsay!”

The court rules for the state where I live allow for an astounding 23 exceptions to the hearsay rule, but very few apply to the cases I deal with.  The exceptions include many outdated things, like the ability of witnesses to speak as to the legitimacy of a child born into the family, or where a property line was historically considered to be, or to quote a deceased person about their last words regarding their will.  But for the criminal cases that I mainly interpret for, there are currently two common exceptions to the hearsay rule, and they center around 911 calls and police interviews that often take place during or directly after an event.  The two exceptions which allow hearsay to be presented in the courtroom for jury consideration are  known as “excited utterance” and “present sense impression”.

What is an excited utterance?  “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  This definition fits in well for a 911 call.  It also allows for what a crime victim says directly after the commission of the crime to be admissible in court, even if the crime victim has become fearful of testifying by the day of trial.  By policy, most domestic violence assault cases are dismissed on the day of trial if the crime victim fails to appear and testify.  But with these hearsay exceptions, the prosecutor can play the 911 call, show a police interview video, and then have the police testify as to what they observed.  In this way, they can still prosecute the assailant, without the witness having to cooperate.

What is present sense impression?  Very similar.  “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”  Rather than having to be emotional or upset at the time, it is simply a real-time or immediate report.  On a 911 call, the victim will frequently call and say for example the assailant is at the door, trying to break in, holding a kitchen knife, armed with a gun, in the next room and threatening, or has just caused bodily harm and then fled the scene.  Many people just don’t call until the danger is immediate, the assault is in progress, or has actually occurred.   So a 911 call stating the assault in progress, or a police video showing the interview with the victim moments after the assault, may be admitted under this exception to the hearsay rule.

Why are excited utterances and present sense impressions allowed in court, even if the witness can be forced to appear in court and could testify afresh?  The idea behind it is that at the moment of crisis, when a person calls 911 or is being interviewed by police directly after the event, there is no time for fabrication, and perhaps more importantly, no one has had the chance to persuade the witness to say something different.  It is real time – it is immediate – and it is considered more valid and probably more accurate than what a witness might choose to recall some months down the line, after the spouse’s family puts the pressure on, or after the victim has decided to give the perpetrator one more chance.

From the point of view of the crime victims, I think of these exceptions as a way for our past self to come forward and protect our current self, even when that current self has lost heart and is not brave enough to do so at the time.  There is something sweet about your past self, at a moment of such crisis, still being able to protect your present self from caving and allowing the perpetrator to walk.  It gives the perpetrator a chance to get some much-needed help and treatment, along with appropriate punishment, and it gives the crime victim a respite during the length of the no-contact order to delve into what kind of relationship is desirable.

Of course, I never know what crimes have actually occurred, or the specific circumstances surrounding any case.  It is not my job to know or judge.  But I have felt frustrated at times that cases get dismissed simply because the crime victim doesn’t show up, because it almost encourages families to put pressure on domestic violence victims to shut them up.  So I am glad that crime victims don’t always have to testify in order for the defendant to face trial.  I am glad that their voice, even if it is second-hand, can be heard under these limited and very special circumstances.  The jury still have the option to disregard the testimony, if they do not find it credible.  But so far, I have not personally seen that happen.  Excited utterances and present sense impressions have an immediacy and an emotional impact that a reluctant recollection some months down the line cannot easily match.