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Hear no evil, speak no evil: importance of an effective criminal defense against hearsay.

I. The rules of evidence

Events often spin out of control, creating a criminal nightmare for someone’s life… such as in the following case, where a planned night out turned into a horrific series of trials. As so often happens, a love triangle gone wrong (and drugs) were the two major precipitating factors in violence. The consequences of simply being accused are so serious, so quickly. It is always essential in any possible allegation of a crime that you immediately seek advice of a very qualified criminal defense attorney. One warning signal is if you have reason to believe someone is using second-hand information about what you may have said.

Instances where hearsay is used, in trying to prove an “intent” to commit murder, often occur. The argument can also be made that hearsay is one bad way the prosecution may use to try and bolster weak criminal cases. These two instances (hearsay and proving “intent” in capital cases) are fairly usual parts of a case, but at the same time they tend to be very complicated. Their use (and, especially, occasional prosecutors’ or police misuse of hearsay) shows that it always takes the most experienced of criminal defense attorneys to protect your rights from improper hearsay statements.

II. Attempted Murder: Misfire In a Car

The alleged and attempted murder in this case began with a fun night out at the club. Unfortunately, there had been frequent unfriendly discussions between two of the men, in their driving to the Mudcats Stadium parking lot. The growing dispute was about the alleged misconduct of a girlfriend. Whether owing to drinking too much or the emotionally charged situation, a .45 and an SKS rifle worked from a car trunk and into the front seat scenario. The man accused of the attempted murder was frustrated in not being able to talk to his girlfriend. They stayed out until 3 o’clock in the morning, in two different vehicles. The two men then had the “luck” to spot the girlfriend in another vehicle. They quickly gave chase, and opened fire from their vehicle.

When the case eventually made it to trial, the defense attorney stress the fact that the prosecutor may have poisoned the evidence, based upon implying that hearsay was enough to convict: “just listen,” the prosecutor had intoned. One part of the argument behind the criminal defense attorney’s analysis was that the prosecutor may have misstated the mental attitude (the intent) that was not proven by direct evidence.

III. “I can’t hear you!”

To the uninitiated, the work of a criminal defense attorney often appears to revolve around magical phrases. One of the most confusing areas in effective legal defense for a criminal charge is the hearsay.

Part of the confusion about hearsay, addressed by a criminal defense attorney, is a very common public misconception. People think that just because something is “hearsay,” that it can’t be used in court. Non-layers think hearsay is always an unreliable bit of information. In truth, the opposite is often true. In cases such as this, where it is hard to get someone to testify about what exactly happened, the exceptions to the hearsay rule are even more important than the rule. A criminal defense attorney also argues whether or not hearsay is going to harm their client unfairly. This case actually had what is called hearsay within hearsay. And as with regular hearsay, it can often be admitted.

The criminal defense attorney in this case objected to the use of hearsay comments by the defendant to a police officer. A detective gave testimony about a phone call he made (hearsay), regarding an alleged statement by the defendant (more hearsay). You can see that this begins to look a bit like Alice in Wonderland, and why only an experienced criminal defense attorney is an effective advocate in presenting allowed or disallowed hearsay.

The idea of hearsay within hearsay required a showing that the detective wasn’t trying to prove what’s called the “truth of the matter” in the hearsay. Instead of arguing the statements were “true,” the prosecutor in successfully argued that the hearsay within hearsay was only used to show the defendant actually had a response to getting the call. This response was witnessed by the officer. Unfortunately for the defendant, and despite the sound strategy of the criminal defense attorney, that non-hearsay “response” (to the hearsay) was used to establish part of the defendant’s alleged intent.

IV.   Mean What You Say, Say What You Mean: Intent

With the importance of hearsay established against the defendant, the criminal defense attorney in this case then turned to disproving sufficient evidence of criminal intent. As the criminal defense attorney noted, “intent is a mental attitude seldom provable by direct evidence.”  So how does the prosecution prove intent, with weak hearsay and no direct evidence? In this case, focusing on intent from what is said by the officer…but not the silence of a defendant. This right not to testify is also spelled out in section 8-54 of North Carolina law: someone who is charged with a crime can absolutely prevent the jury from interpreting their decision not to testify as somehow proving guilt, or establishing some element of intent.

There’s also another important lesson, beyond important hearsay rules on showing intent, to be learned from this case. Because of important issues in any capital case, an experienced criminal defense attorney sometimes has the opportunity to take a state case and address if there’s a federal issue. This can be a particular challenge if the attorney is not experienced enough to recognize another weapon in a full defense. In this case, the accused man was actually given the opportunity to delay a final decision in North Carolina, because an important United States Supreme Court decision was pending, and which had important defense rights for this particular case. While this scenario of federal/state overlap is fairly uncommon, it should never be simply lost, by lack of a qualified criminal defense attorney.


If you, a family member or a loved one have questions about any arrest, or involving related claims or your legal rights or hearings, including (but not only) intent to commit a crime, please contact us.  You will speak with an experienced criminal defense attorney, who can best answer your questions about how your rights can be protected.  There is never a fee for this initial consultation.

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