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Departments : Point of Law

Hearsay and Confrontation

You’ll have to be careful of how you collect statements for evidence now that some types of testimony are no longer admissible in court.

May 01, 2004  |  by Devallis Rutledge - Also by this author

Unstructured Questioning

Apparently, the courts regard traditional police interviewing of a victim or witness as "structured questioning," making evidentiary use of any resulting statement problematic. What can you do? Police reports will now need to try to differentiate between statements that were not the result of structured questioning and those that were.

When you first arrive at the crime scene and people run up to tell you a story, or when you say, "What happened?", any response you get should not fall into the "testimonial hearsay" category. That statement should be clearly identified within your report as having been volunteered, or given in response to a general question. And unless some emergency requires it, you should not be too quick to start asking questions in the middle of someone's volunteered statements. Be a good listener, take good notes (or turn on your tape recorder), and make clear in your report that this information was not directed or extracted by you.

Once you have to begin your methodical questioning to elicit the important details that the witness left out of his or her non-testimonial statement, the potential admissibility rules will change. You now have to identify the subsequent statements as having been obtained through specific questioning, and again, your report will have to indicate the demarcation.

Sample Investigation and Report

Suppose you roll on a family fight call. You're met at the door by the wife, who lets you in. You might simply say, "Are you the one who called?" Then let the woman tell her story. Don't interrupt to clarify or direct the statement in any way. When she stops talking, maybe your facial expression suggests that you still haven't heard it all, and you wait quietly for more. She says more. All of this information could potentially be admissible at any trial of the husband, under the applicable evidentiary hearsay rules.

Once the volunteered statement ends, you conduct any necessary follow-up questioning to fill in the blanks. These answers are the statements that will fall under the Crawford ruling, making admissibility unlikely.

Your report reads something like this: "As soon as I was inside the house, I asked Mrs. Doe if she was the one who had called the police. She said she was, and then she immediately proceeded to tell me all of the following, on her own: [her full statements]. After Mrs. Doe stopped talking, I asked her...and she said...." This sort of report makes clear that the initial statements you reported were not the result of "structured questioning," and should not be subject to the Crawford ruling.

Crawford Fallout

The Supreme Court deliberately left undecided the extent to which the new ruling on confrontation might affect such hearsay as dying declarations and overheard remarks, and indicated that lower courts would have to begin to apply the new test on a case-by-case basis to statements that might or might not constitute "testimonial hearsay."

While the full extent of the Crawford decision is being worked out, it is advisable to check with local prosecutors about any changes they might suggest, in particular kinds of cases, to maximize the opportunities to obtain admissible statements before resorting to "structured questioning."

Attorney Devallis Rutledge, a former police officer and prosecutor, defends officers and agencies at Manning & Marder, Kass, Ellrod, Ramirez.

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