Hearsay

One of the more confusing evidentiary issues in Massachusetts involves the introduction at trial of statements that were made outside of the courtroom. Hearsay is defined as an out-of-court statement that is being offered at trial to establish the truth of the statement. Hearsay statements are generally not admissible at criminal defendants’ trials, but there are many exceptions to the rule. Pretrial hearings that determine what out-of-court statements will be presented to the jury are incredibly important and often determine whether the Commonwealth will be able to prove its case beyond a reasonable doubt. Some of the most common hearsay exceptions are listed below.

Excited Utterances

An excited utterance, also known as a spontaneous utterance, is a statement made by a declarant (a witness) who is under the influence of an exciting event and makes statements about the exciting event shortly after it happens. The most common examples of excited utterances in criminal cases involve victims who call 911 to report a crime. In determining whether a statement qualifies as an excited utterance, a judge will consider: how much time had elapsed between the exciting event and the statement; the demeanor of the person making the statement; and the nature of the exciting event itself. The rationale behind allowing an excited utterance to be admitted into evidence is that the declarant does not have time to fabricate the statement – it is deemed to be inherently reliable. Criminal cases that involve excited utterances often allow the Commonwealth to prosecute a case even when the alleged victim refuses to testify.

Statements of a Party Opponent

In criminal cases, the defendant is the “party opponent” of the Commonwealth. Therefore, any statement the defendant makes to police officers (or anyone else) is admissible as a statement of a party opponent. This exception to the hearsay rule allows the Commonwealth to admit a defendant’s confession to a crime.

Statements Against Penal Interests

If a witness makes a statement that is inconsistent with his own proprietary or pecuniary interest, it is admissible as a statement against penal interests. The rationale is that a person would not make a false statement that is against his interests, so a damaging statement is inherently trustworthy.

Dying Declarations

In murder cases in Massachusetts, if the victim made a statement about the manner of his death shortly before he died (while believing he was about to die), his statement is admissible against the person accused of killing him.

Prior Inconsistent Statements

Witnesses in criminal cases often offer trial testimony that is different from statements they previously gave to the police. When a witness changes his story at trial, another witness is permitted to testify about the first witness’ inconsistent statement. For example, in a domestic violence case, if an alleged victim testifies at trial that she was shoved by the defendant, but she told a police officer on the night of the incident that the defendant never touched her, the police officer may repeat what the alleged victim told him as a prior inconsistent statement.

The pretrial litigation regarding the admissibility of hearsay statements is sometimes the most important part of the trial. It is crucial for criminal defense attorneys to identify potential hearsay traps and to preemptively move to exclude all damaging hearsay statements the Commonwealth might try to introduce.

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