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Hearsay And Whether Defendant’s Statements Are Admissible
15 Aug 2016

Hearsay And Whether Defendant’s Statements Are Admissible

Often people refer to gossip as hearsay. Instinctively, a person knows hearsay, or gossip, is generally unreliable because you are receiving the information indirectly. Generally, such statements are inadmissible in court. However, when a person is telling someone else the statements you made, such information may or may not be considered hearsay.

What Is Hearsay?

Pursuant to New Mexico’s Rules of Evidence 11-801(C), hearsay is defined as a statement that

  • The declarant (person who actually says the statement) does not make while testifying at the current trial or hearing, and
  • A party offers in evidence to prove the matter asserted in the statement.

In brief, hearsay is when a person testifies to what another person said. Such testimony is generally not admissible as evidence unless there is an applicable exception. Rules of Evidence 11-802.  For example, if Joe is testifying and states, “Bob said he saw Rob at the grocery store on the night a theft occurred,” Joe’s statement is hearsay and is therefore inadmissible in court.

As A Defendant, Are My Statements Hearsay?

Statements made by defendants in criminal cases are not hearsay and therefore are usually admissible as evidence if the statement is offered against the defendant and

  • Was made by the party in an individual or representative capacity,
  • Is one that the party manifested that it adopted or believed to be true,
  • Was made by a person whom the party authorized to make a statement on the subject,
  • Was made by the party’s agent or employee on a mater within the scope of that relationship and while it existed, or
  • Was made by the party’s co-conspirator during and in furtherance of the conspiracy.

Rules of Evidence 11-801(D).

Most people are familiar with Miranda warnings and the phrase, “what you say can and will be used against you.” The reason for the warning is that a police officer, or other people, can testify to statements a defendant made out of court. The rationale behind this exception is that since defendants are parties to the criminal case, they do have an opportunity to either admit or deny the witness’s testimony regarding the defendant’s statement.

Consequently, a person charged with a crime must take particular care with whom he or she speaks. The only person a defendant should reveal everything to is his attorney. The person you met in jail who agreed you were being treated unfairly, could be a plant by the police. This trap is easily avoided; do not talk to anyone about your situation but your attorney.

The person testifying must have directly heard the defendant make the statement. Suppose Joe is testifying and he says Bob told him that the defendant was always talking about how easy it would be to rob the Main Street Minute Mart. That statement would not be admissible. In this instance, Joe would not be testifying about what the defendant said, but what Bob said the defendant told him. The foregoing is an example of double hearsay. Double hearsay occurs when a person repeats what a second person said a third person stated. Double hearsay is not admissible, unless there is an exception for each hearsay statement. Rules of Evidence 11-805.

Can My Spouse Testify To Statements I Made?

As stated, a statement a defendant makes out of court is admissible. However, if the defendant made a confidential statement to a spouse, the spouse cannot be forced to testify against the defendant under the spousal privilege rule. Rules of Evidence 11-505. Moreover, the defendant can bar his spouse from testifying against him. Id. However, limits do exist to the spousal privilege rule. If the defendant is charged with a crime against a spouse, the spouse’s property, or a child of either spouse, the spouse can testify against the defendant. Id.

The rule is simpler than it sounds. Suppose the defendant is talking with his wife over the dinner table and no one else is present. He tells her, “I have a problem. The Minute Mart was robbed, and I was in the parking lot that night about midnight.” That confession to his wife would be inadmissible in court because it was a confidential communication made to his wife.

Should I Take The Witness Stand To Refute The Offered Testimony Regarding My Statements?

There are many factors to consider when deciding whether you should testify at your criminal trial. The rule of thumb is most defense attorneys advise a client not to testify. However, if statements you made to another person is admitted, some of the reason for not testifying may not be valid.

Suppose Bob testifies the defendant told him he was in the Minute Mart parking lot at 1:30 AM the night the store was robbed. In this instance, the defendant may not have wanted to testify because he did not want to admit he was in the parking lot on the night the store was robbed. But due to Bob’s hearsay testimony, the jury heard evidence the defendant was in the parking lot. Consequently, the defendant and his Albuquerque criminal defense lawyer would factor Bob’s testimony in their decision to testify or not to testify.

Taking the witness stand in your own defense is a major decision. Several factors other than rebutting your statements made to another party should be considered before you testify. Each trial is different and only the attorney representing you can properly advise you on the decision to testify.

Discuss your criminal trial strategy with a seasoned Albuquerque criminal defense lawyer by contacting Ray Twohig at 505.847.3097.



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