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Admitting Hearsay Testimony: The General Rule

In a previous blog, the definition of hearsay, and reasons for denying its admission, were briefly discussed. Though hearsay statements are generally inadmissible, there are exceptions to the rule.

Nevada Revised Statute 51.075 provides the following general rule regarding hearsay exceptions: "A statement is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a witness, even though the declarant is available."

In short, a statement can be made in such a way and under circumstances that offer enough of an assurance of accuracy as to warrant its admission. As an illustration, consider Johnstone v. State, 92 Nev. 241 (1976). There, the Nevada Supreme Court held that, in a prosecution for murder, the hearsay statements of a couple not involved with the police, the victims, or the defendants, who apparently lacked any motive to lie, and were unavailable as witnesses, should have been admitted.

In that case, Appellant Robert Johnstone and his associates, Claude Theriault and Lloyd Paulette, were convicted of murdering Eugene and Mary Carone, a married couple, in a Las Vegas Hotel after a crime spree that spanned several states. At trial, Johnstone claimed he was not present when his co-defendants, Theriault and Paulette, murdered the Carones.

In support of that, Johnstone sought to offer testimony of another couple staying at the hotel who had said that they saw only two assailants heading to the Carone's room on the day of the murders. Those statements were contained in a police report prepared by Detective Lee, the investigator in charge. The theory was that if there were witnesses that would testify only two assailants were present at the time, Johnstone's contention would have some merit, without that, all that the jury had to consider was Johnstone's involvement in the previous crime spree spanning several states, strongly suggesting Johnstone was also involved in the murders.

However, the couple could not be found at trial and so Johnstone sought to elicit their eyewitness account through the detective's report. The State successfully objected and, subsequently, appellant was convicted of murder.

In considering the case, the court began by quoting Judge Learned Hand, a famous jurist, who had once opined that, "The requisites of an exception to the hearsay rule are necessity and circumstantial guaranty of trustworthiness." Thus, at issue was the veracity of the couple's statement and what facts were present that would resolve that question.

The court reviewed the record and found that the couple had no evident involvement with the detective, the accused, or the victims; therefore, there was no motive to lie or assist Johnstone (nor could the couple have any idea of what to say or not to say to either assist or impede Johnstone's case). Moreover, there were two hearsay declarants rather than one and the material aspects of their recollection agreed as to what they saw. Therefore, the court found the requisite assurance of accuracy and reliability and held that the hearsay statement's should have been admitted.

The Court reached the opposite result in Collman v. State, 2000 Nev. LEXIS 93, 116 Nev. 687, (2000). There, the Court held that a defense expert's proposed testimony of his fellow forensic dental colleagues' opinions did not possess the requisite assurances of accuracy and thus his testimony did not fall within the exception.

In that case, Damian Stach, a three year old boy, was murdered by his mother's boyfriend, Thomas Collman, the Appellant. Part of Thomas' defense was that the child fell down the stairs and may have choked on bubble gum. The State argued that there was persistent abuse, which included biting the child. To support its position, the State provided expert testimony that several marks on the child's body were caused by bites. The Defense disputed this and hired an expert that concluded only one mark was a bite, not the others. Before trial, the defense expert took photos of the bite marks and bruises to colleagues at a conference. Several agreed with him. The defense attempted to introduce those statements at trial. The Court refused and an appeal followed.

Although the Court found that the expert's colleagues may have no motive and are disinterested, there was no assurance their statements were accurate. In support of their position, the defense cited another case where testimony from a colleague who was an expert was admitted at trial despite the fact that the expert was not available to testify.

However, the Court distinguished that case with Collman's because in the previous case, the testifying expert and unavailable expert consulted extensively and the unavailable expert provided a report. In Collman's case, all the proposed experts did was review photos of the child's body, including the bite marks; they did not have molds of the mother's, Collman's, or the child's teeth, they did not read the State's expert's report, and they did not view the body. Additionally, the proposed experts only viewed the photos for a couple of minutes between seminars. Thus, the Court held that the opinion may be inaccurate or based on limited information, necessitating live testimony subject to cross-examination. Collman's appeal was subsequently rejected.

NRS 51.075 provides the general, catchall rule. There are, however, numerous specific exceptions, which are not exhaustive. The next blog will deal with those exceptions.