When Simon and Garfunkle wrote \u201clisten to the sound of silence\u201d they were not urging a principle applicable to hearsay analysis.\u00a0 But the Michigan Supreme Court took that notion to heart in a recent decision that \u2018read between the lines\u2019 and found that words never mentioned in court, but inferable from context, violate not only the rule against hearsay but, in a criminal case, the Confrontation guarantee.<\/p>\n
For context, imagine the following testimony in a criminal trial:<\/p>\n
Q: Officer, were there any leads on the first day after the crime?<\/p>\n
A: No.<\/p>\n
Q: What did you do to try and solve the case?<\/p>\n
A: I spoke to 12 neighbors, people who were home the day of the shooting.<\/p>\n
Q: After speaking to them what did you do?<\/p>\n
A: I secured an arrest warrant for this defendant.<\/p>\n
To put it mildly, one does not need mind-reading skills to know what the 12 people, or at least some of them, told the Officer \u2013 this defendant did it.\u00a0 But technically, no out of court statements were introduced at trial.<\/p>\n
In People v. Washington <\/em>(Mich. July 26, 2024), the Michigan Supreme Court confronted similar testimony in a case where Washington was accused of being a convicted felon in possession of body armor.\u00a0 Washington had crossed the border from Michigan to Canada and was caught by a Canadian official \u2013 Lavers – with the body armor.\u00a0 Washington was then turned over to Michigan law enforcement.\u00a0 Because the Canadian agent did not appear at trial, the prosecution offered the Michigan officer \u2013 Stockwell – \u00a0who took Washington into custody. As the Court explained,<\/p>\n <\/p>\n At trial, Officer Stockwell testified that he met Officer Lavers on the American side of the bridge and that defendant was in a police cruiser. He testified further:<\/p>\n Q<\/span>. At some point did Officer Lavers from the Canadian services hand you any other evidence?<\/p>\n A<\/span>. Yes, he did.<\/p>\n Q<\/span>. What did he hand you?<\/p>\n * * *<\/p>\n A<\/span>. A body armor.<\/p>\n * * *<\/p>\n Q<\/span>. Now, without saying anything about what was said, the only question I have for you is were there communications between you and Officer Lavers?<\/p>\n A<\/span>. There were.<\/p>\n Q<\/span>. Okay. And . . . based on those communications you took custody of the Defendant?<\/p>\n A<\/span>. Yes, we did.<\/p>\n Q<\/span>. And you took possession of the body armor that was turned over at the same time?<\/p>\n A<\/span>. Yes, sir.<\/p>\n What the jury never heard were Lavers\u2019 words; but what was easily deduced were their \u201csubstance.\u201d\u00a0 And that was \u201cOfficer Lavers’s out-of-court statement that defendant possessed the bulletproof vest when Officer Lavers encountered him.\u201d\u00a0 People v. Washington, 2024 Mich. LEXIS 1434, *16<\/p>\n The Michigan Court, with ample support in federal court precedent, confirmed that implicit communication of the substance of an out of court statement triggers hearsay concerns.\u00a0 And here, because it was a criminal trial and Lavers\u2019 words to Stockwell were \u201ctestimonial\u201d hearsay, that veiled discussion constituted a violation of Washington\u2019s right to confront the adverse witnesses against him.\u00a0 Lavers\u2019s assertion was communicated to the jury;\u00a0 Lavers could not be cross-examined.<\/p>\n What are the lessons?\u00a0 First, jurors are discerning individuals who can, and will, read between the lines.\u00a0 Second, unspoken hearsay is still hearsay if everyone can figure it out.\u00a0 Third, we should not be subjecting people to trial and conviction with this backdoor, unchallengeable proof.<\/p>\n There may be another lesson.\u00a0 In some trials, Lavers\u2019s words would have been repeated and not just alluded to, purportedly not for their truth <\/em>but to explain what is called \u201cpolice course of conduct\u201d evidence, the \u201cwhy\u201d of what police did next.\u00a0 But, as the Michigan decision notes, that rationale should be deployed only when there is good reason, such as a claim of bad faith or ineptness in the investigation, as otherwise the questionable need for such proof is offset by the risk of unfair prejudice and occasioning a Confrontation Clause violation.<\/p>\n Silent hearsay is still hearsay; and a \u201cnot for the truth\u201d end run doesn\u2019t un-ring the hearsay bell.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" When Simon and Garfunkle wrote \u201clisten to the sound of silence\u201d they were not urging a principle applicable to hearsay analysis.\u00a0 But the Michigan Supreme Court took that notion to heart in a recent decision that \u2018read between the lines\u2019 and found that words never mentioned in court, but inferable from context, violate not only<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[330],"class_list":["post-3821","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog"],"yoast_head":"\n