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In State v. Washington, the SC Court of Appeals reversed a burglary first-degree conviction because the trial court allowed the prosecutor to play audio of an interrogation – including hearsay statements made by the investigator.
What is hearsay, and why aren’t an officer’s statements during an interrogation admissible? If you are in trial and the prosecution attempts to play an officer’s hearsay statements for the jury, how do you preserve the record for appeal?
More importantly – why do we even have this appellate opinion in 2020, when the exact same issue was decided in 2015?
First, let’s talk about what hearsay is. It’s a deceptively simple rule of evidence that is somehow misunderstood on a regular basis by defense attorneys, prosecutors, and judges…
Hearsay is not admissible in court because it is not reliable. What is hearsay? It 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.”
It’s not hearsay if it’s a statement that was made by the person who is testifying, and it’s not hearsay unless it is offered “to prove the truth of the matter asserted.” John said, “I saw Mary stab James with the knife” = hearsay unless it is John who is testifying.
It’s also not hearsay when you impeach a witness with their prior inconsistent statements, and it is not hearsay if it is “an admission” by a party-opponent. For example, a defendant’s out-of-court statements are not hearsay if the statements are also an admission of guilt.
There are a number of exceptions to the hearsay rule, some of which only apply when the “declarant” (the person who made the statement) is not available for trial, while other exceptions apply whether the declarant is available or not.
Although a defendant’s statements made during an interrogation are not hearsay (admission of a party-opponent), an officer’s statements made during the interrogation might be. The officer’s statements are not automatically admissible just because the defendant’s statements are admissible, and the officer’s statements are not admissible to “provide context.”
There is no “context” exception to the hearsay rule.
In Washington, the officer’s statements that the Court of Appeals found inadmissible included:
The prosecutor can play audio of the defendant’s statements for the jury, but that doesn’t mean they get to include all of the out-of-court statements that were made by the investigator – the statements may or may not be true yet they are offered for the truth of the matter asserted, and no hearsay exception covers the statements.
Even worse, the statements are filled with what is called “burden-shifting” – it is unconstitutional for a prosecutor (or state’s witness) to say or imply that it is the defendant’s responsibility to prove his or her innocence – the burden of proof is always on the prosecution.
The defendant in Washington nearly lost his appeal (and may still when the SC Supreme Court hears the case) because the trial attorneys did not specifically object to both hearsay and burden-shifting and because his appellate attorneys did not specifically include both hearsay and burden-shifting in his issues on appeal.
When the issue comes up, the trial attorney must object on the record to the hearsay, the burden-shifting, and any other potential grounds for appeal. If the trial court denies the objections and the defendant is convicted, the appellate attorney must then raise each issue as grounds for appeal and argue each specific issue in their appellate briefs.
The Court of Appeals in Washington says:
Law enforcement’s ad nauseam insistence that Brewer prove his innocence has no place before the jury. It is chilling that we have to remind the State that an accused is presumed innocent and that the State has the burden to prove guilt beyond a reasonable doubt.
It is doubly chilling because the SC Supreme Court decided this exact same issue based on very similar facts in 2015, before Washington’s trial, in State v. Brewer. And the prosecutor knew or should have known that what they were doing was prohibited.
Police can lie to suspects during an interrogation. They can say just about anything that they want, “including misrepresenting the existence and strength of the evidence against an accused, as well as asking the accused to produce evidence voluntarily.”
That doesn’t mean that the prosecutor is allowed to play audio of the officer’s lies in front of the jury, however. Despite this clear guidance from State v. Brewer, the prosecution not only sought to play the audio for the jury in Washington’s trial, but they made the same argument that the prosecution lost in the Brewer case – they needed to play the audio to the jury “for context.”
Although the SC Supreme Court said in Brewer, “we find no support in the law for the State’s argument that the interrogators’ statements were admissible for purposes of context or for the effect the statements had on Brewer,” the prosecutor in Washington argued to the trial court and then the Attorney General argued to the Court of Appeals that the hearsay statements were necessary “for context.”
It is, indeed, “chilling that we have to remind the State that an accused is presumed innocent and that the State has the burden to prove guilt beyond a reasonable doubt.” Over and over again.
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