Hearsay

Other Witnesses' Testimony Pertaining to the Victim

As noted earlier, the prosecution might also seek to secure testimony from law enforcement officers and family, friends and coworkers of the victim. In situations where a victim did not fully cooperate with the prosecution or the testimony lacked sufficient detail for whatever reason, the prosecution may necessarily have to rely heavily on testimony of other witnesses.

Hearsay Concerns

Where there is an uncooperative or less than persuasive victim, a common prosecution tactic is to rely heavily on the testimony of the law enforcement officer regarding the investigation of the case and interactions with the victim. Of particular focus might be details the officer learned from the victim regarding the number of alleged instances of stalking or harassment, the specific methods used, and the impact the conduct had upon the victim. Similar testimony might be sought from family, friends or co-workers of the victim.

Given that those witnesses would likely be testifying about statements and information told to them by the victim, the evidentiary rules pertaining to hearsay might come into play. Generally, "hearsay" is defined as an out of court statement, made by a person other than the one testifying to the statement, which is offered into evidence for the truth of the matter asserted in the statement. See Rule 11-801(C) (definition of hearsay).

An example of hearsay is the following: as a means of proving the identity of the harasser and what form the harassment took, mother testifies that "While I was at my daughter's house, she told me that Darren, her co-worker, was harassing her with dozens of threatening phone calls." That statement is hearsay because:

1. the statement by daughter to mother was made outside of court;
2. the daughter's statement was being testified to by the mother, rather than by the daughter herself; and
3. the statement is being offered to prove the truth of its contents--specifically that co-worker Darren was the daughter's harasser and his method involved dozens of threatening phone calls to her.

However, if the daughter herself testified "When my mom was at my house, I lost it, broke down and told her that my co-worker Darren had been making dozens of harassing phone calls to me," that would not be hearsay. First, the daughter was testifying about her own statement, as the declarant. Second, the daughter is subject to cross-examination by the defense, which can explore matters such as her truthfulness, accuracy of recollection, and any motives she might have for her statements.

Thus, the concern with respect to hearsay is that the individual alleged to have made the out of court statement is not, or may not, be available in court to be questioned directly about it. In hearsay situations, the inability to question the declarant limits the opportunity to test the statement for accuracy.

Given those concerns, if either the prosecution or defense attempts to introduce hearsay, the other party may object in a number of ways. For example:

• A pretrial motion might be filed and argued to set the parameters of a witness's questioning and testimony before he or she ever takes the stand; or
• More commonly, a hearsay objection might be raised at trial during the questioning of a witness in anticipation of hearsay or immediately after the witness makes a hearsay statement.

The most common responses from the non-objecting party to the other side's hearsay motions or objections are:

• Argument that the out of court statement is not hearsay given that the statement is being introduced for purposes other than to prove the truth of the matter asserted; or
• More commonly, argument that although the statement is hearsay it is nonetheless admissible as an exception to the general prohibition against hearsay.