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December 19, 2010

2

“hearsay,” she said he said

by Andrea O'Connell

Although the meaning of hearsay seems, at first blush, simple enough, it is really quite confusing.  There are exceptions to hearsay, making it a confounding concept in criminal cases.  Anytime there are exceptions to a rule, confusion is bound to occur.  Believe me, the hearsay exceptions are confusing!  I would attempt to break the exceptions down for you, but it’s ultra confusing and mired in details that end up looking like a tangled web of words, words, words.

So… Let’s not go there!

But, because the Casey Anthony case is moving along to its finish line, this is a good time to try to define hearsay.  Especially in lieu of all the discovery we have been privy to in the Casey Anthony case.   By the way, it’s called “discovery” for a reason.  All the material we have been privy to (thanks to the Floria Sunshine Law), is not evidence, rather it’s information that LE and the State have gathered to form the backbone and foundation of their theory about the case.

The information we have read and heard may never see the light of day, depending on its hearsay classification come trial time.  (A good amount of the discovery will never see the light of day in the trial as a result of hearsay rules.)

Law enforcement collects hearsay as a matter of course.  LE learns a great deal about a case via hearsay when they are building their concept of what happened.  It helps them put the pieces of the puzzle together, and they are able to separate hearsay from evidence, though before trial it is all categorized as discovery in Florida.

For instance, the LE interview sessions with individuals in the Casey Anthony case are chock full of hearsay and information that is not usable because of hearsay laws.  And when the State Attorney’s Office has the case, they have to comb through these interviews and other facts of the case from LE to find what is evidence versus what is hearsay.

By the same token, because Florida rules of discovery say that everything produced via work on a case is discoverable (a product of a case), it is thus required to be released to the public.

By the way, not every trial in Florida is under the lens of public scrutiny like the Casey Anthony case.  Because this case, from day one, fascinated the public, the media outlets fought for the right of release of information via the Florida Sunshine Laws.  Hence, we have the Casey Anthony case under the looking glass 24/7.

So. let’s start with a definition of hearsay, then we’ll look at a definition of the hearsay rule.  Finally, I will try to define the hearsay rules through the lens of the Anthony case – the operative word here is “try”.  If there are any lawyers out there who would care to correct me, I’d surely welcome the input!

Hearsay Definition:

Secondhand information that a witness only heard about from someone else and did not see or hear himself. Hearsay is not admitted in court because it’s not trustworthy, as well as because of various constitutional principles such as the right to confront one’s accusers, however, there are so many exceptions that often times hearsay is admitted more than excluded. SourceLectlaw.com

Hearsay Rule Definition:

Definition – Noun
A rule barring the admission of hearsay as evidence.  The hearsay rule is stated in Rule 802 of the Federal Rules of Evidence. Hearsay is inadmissible as evidence because of the unavailability of cross-examination to test the accuracy of the statement. There are numerous exceptions to the rule, however, mainly for statements made under circumstances that assure reliability. Statements made spontaneously, for example, or as part of a business or medical record are inherently trustworthy and thus excepted from the rule. A statement need not be made orally for purposes of the hearsay rule. Written statements, gestures, and even motion pictures are included.  Source: Lawyers.com

A declarant is a person who makes a statement.  A “statement” is:

  1. An oral or written assertion; or
  2. Nonverbal conduct of a person if it is intended by the person as an assertion.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Source: law.onecle.com

Example

Testimony from a witness during a trial would not be hearsay unless the witness repeats something that someone else said (or wrote).    Also, if a witness makes a statement that is introduced in trial to prove something other than the truth of something, it is not considered to be hearsay.  According to Lectlaw.com, testimony can be given to illustrate the state of mind of the speaker of something.  For example, if Cindy and Casey were fighting and Cindy called Casey “a murderess” and if I overheard Cindy making the statement,  I could not testify to the “truth” of Casey being a murderess, but I could repeat the statement because it would illustrate Cindy’s anger, or state of mind, at the time she made the statement – to show that she was angry at Casey.  This type of testimony will be especially helpful to the State of Florida since George and Cindy Anthony made so many contradicting statements.  The State has a plethora of conflicting statements to use against the Anthony’s should they try to dissemble on the stand at trial.

Are you confused?  Don’t worry, so am I!

Here’s another example:

If a witness makes a statement out of court, it could be presented at trial if it contradicts what he is saying in the trial when the out of court statement is used to create doubt on the witness’s credibility (rather than proving the truth of the matter at hand).  So, let’s say Dr. Lee is testifying that it’s wrong to use one pair of gloves to collect different blood samples – that the collector of the blood should frequently change his or her gloves.  Well, if Dr. Lee said just the opposite in another trial, and if it were pointed out to the jury, it would lower Dr. Lee’s credibility.

There are quite a number of exceptions to the hearsay rule, and I’ve not even scratched the surface here!  But, I do hope this will help us in the future as the hearings happen with greater frequency, and the start of the trial commences.

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2 Comments Post a comment
  1. Rob
    Dec 20 2010

    Hi Andrea, Thank you, for a great summation of the Hearsay rule. You did make it much clearer for me. As I understand this rule, Tony Lazzaro will be able to testify to the fact that Cindy told him ” She hoped he was rich, because Casey would take him for every dime he had”. Furthermore, the statements Casey made to him while Caylee was missing. This would apply to the lies Casey told the police, and her friends.

    Reply
    • Dec 20 2010

      Hey Rob, thanks a bunch for your comments. I was a little worried that folks wouldn’t understand what I was trying to say…. LOL! But, you got it right, I believe. Yes, I believe that Tony Lazzarro would be able to testify to what Cindy said about Casey as it goes to Casey’s tendency to steal from anyone and everyone. And, yes, the lies she told to him, she also told to other friends….like Caylee being at the beach, with the nanny, at Universal, etc., because a number of people will be able to corroborate these statements. And, tony can testify to the bad dreams she had, the night sweats, and all kinds of things….Oh boy, when you think of it, Casey really used a lot of bread crumbs in terms of what she did and what she said during those 31 days she was hiding out…..

      Reply

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