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Hearsay Evidence and Unreliable Witnesses at Criminal Defense Trials

“Hearsay Evidence” – many people have heard this term, but what does this term actually mean?  Hearsay is essentially an out of court statement which has not been subjected to prior cross examination, and therefore is not admissible in a criminal trial.

Here’s an example: a man has been charged with armed robbery and there are two witnesses to the case. One witness is at trial and says she saw the defendant running out of a bank with a gun in his hand. This is strong evidence – the witness is in court and the defendant’s criminal lawyer has the opportunity to cross examine her while she is under oath. Her statement will be admissible evidence. The other witness was interviewed by a police officer but later disappeared. He is not present at the trial, but the police officer testifies that the witness said the defendant robbed the bank. Now this is hearsay because the witness is not there and is unavailable for cross examination by the defendant’s lawyer.

The reason the second witness’s statement should not be admissible is that it is unclear whether the witness is “reliable.” We don’t know anything about the second witness – he could have had a grudge against the defendant or might have poor eyesight. This information could come out during the criminal defense attorney’s cross examination of the witness, but since the witness is not in court, confrontation is not possible. This is why statements about what someone else said are “inherently unreliable” and considered hearsay.

Under the 14th Amendment of the United States Constitution, defendants have the right to a “fair trial.” To ensure that the trial is fair, we have a strict evidentiary code, meaning that we don’t let any and all evidence in. Admissible evidence must be considered reliable and trustworthy and must be subject to possible cross examination by the defendant’s lawyer.

A skilled criminal defense attorney will recognize hearsay evidence and object to that evidence. If the judge agrees that the evidence is hearsay, he or she will sustain the defense attorney’s objection and the evidence will not be allowed in.  Defendants facing criminal charges must make sure they choose an experienced courtroom attorney who can identify evidence that should not be admissible in court.

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