Thursday, April 09, 2015
JK"S Down and Dirty Hearsay Test
Speaking of hearsay, let me share what I call “JK’s down and dirty hearsay test”. In determining whether or not something is hearsay you have to decide is it coming into evidence for the truth of the facts contained in the statement. If it is, then it is hearsay, but if it isn’t, then it is not hearsay. The question is how do you quickly determine whether something is coming in for the truth of the matter contained in the statement?
My quick test is whether the answer would be relevant if it was false. That is, if we knew that the
facts set forth in the answer or statement were false, would it matter to the outcome of the trial or proceeding?
Here is a quick example: Suppose the issue at a hearing on a motion to suppress is whether an officer making a traffic stop had a reasonable and articulable suspicion to make the stop. She testifies that she ran a L.E.A.D.S. check on the vehicle’s license plate and information came back that the person to who the plates were registered was driving under a court-ordered suspension. Now suppose that the information about the owner’s license was false. The fact that it was false wouldn't matter because the relevance of the information is that the information, whether true or false, gave the officer a legal basis for stopping the car. That’s what I mean by assuming that the information is false and then considering whether its relevance depends on its veracity. I am not saying that this test works in all cases, but it works in a lot of them and it can be applied in the heat of battle that is a trial.
Posted by Team Member at 6:53 AM