Polk Law Blog

The story is tragic, and those of us from around here probably remember it well.

The Ledger is running a story about a recent ruling from a judge in Polk County in the murder trial of Leon Davis.  Apparently, one of his victims, while death was imminent, made a recorded statement identifying Davis as her attacker. The judge ruled that the jury will be allowed to hear that statement.  Why is this news? What’s the big deal? Shouldn’t such statements always be allowed in court?

Well, no actually. This case provides a really interesting textbook example of a dark, moldy corner of the evidence code being put into practice, and a great opportunity to discuss the hearsay rule.

The hearsay rule is a very old legal concept rooted in our fundamental conception of due process. The basic idea is that a defendant should be allowed to confront and cross-examine his accuser. Let’s take an example. Let’s say Albert is accused of murdering Bob. Carl is a witness to the crime. At trial, the state attorney calls Carl to the stand who says, “I saw Albert kill Bob.” Then, Albert’s lawyer has a chance to get up and cross examine Carl. He gets into whether Carl really could see the crime from his angle, and how he was able to recognize Albert. Everyone gets a fair chance to prove his case. No problem here!

But what if Carl isn’t around? What if he moved to Japan to teach English, or to an even more foreign country, like California, and can’t be found? Well the state goes to plan B. The state calls Carl’s friend Dave, who says, “Yeah, Carl told me that Albert did it.” What then? When Albert’s attorney talks to Dave, he can’t ask him where Carl saw the crime from, how much Carl had to drink that night, or how he knows it was Albert that he saw. All Dave can say is, “I don’t know, that’s what Carl told me.” Carl’s statement that he saw Albert do it becomes unattackable, unassailable.

Enter the hearsay rule. The hearsay rule says that out of court statements are not admissible as evidence, because the other side doesn’t have the ability to cross-examine the witness who made the statements.  (The rule is actually that out of court statements “offered for the truth of the matter asserted” are inadmissible. That bit of it is a little beyond our discussion here, but know that it’s slightly more complicated than this.)

But the hearsay rule has lots of exceptions. LOTS. The actual number is twenty-nine or thirty, and law students get to learn about every single one. (Oh happy days!) The exceptions are for situations where the statement has some inherent reliability. For example, public records are out of court statements, but you don’t have to call in Joe Tedder as a witness to prove that you paid your property taxes. (Joe Tedder is our local tax collector.) The records in his office are admissible under the public records exception to the hearsay rule, because a public record is deemed to have some inherent reliability.

One of the more interesting exceptions to the hearsay rule, one that you almost never see in real life but that is elegant in its simplicity, is the “dying declaration” exception to the hearsay rule. A dying declaration is defined in law like this:

Statement under belief of impending death.–In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death. Fla. Stat. sec. 90.804(2)(b).

Simply put, if you think you are about to die, and you say something to someone about what happened, the court thinks your statement has some inherent reliability to it, and it will allow that statement into evidence, even though it was made out of court. That appears to be what happened in the Leon Davis case.

On one hand, maybe this rule doesn’t make sense. Wouldn’t someone who is nearly dead have some serious mental instability? Wouldn’t they be more likely to jump to conclusions or have delusions about what happened to them? But on the other hand, it’s nice to know that a victim can identify her attacker moments before her death, and that justice can be done, even when the victim is not around to see it.

If you are interested in seeing the other exceptions to the hearsay rule, check out Fla. Stat. sec. 90.803 and 90.804, if you dare to read legalese. For a more comprehensive and layperson-friendly explanation of the hearsay rule, the Wikipedia article on the subject is pretty decent.