You Don’t Say! Three Limited Hearsay Rule Exceptions In Criminal Cases
Many criminal defendants discover one thing in their first few meetings with their defense attorney: a very wide gap between the evidence the defendant wants the court to consider and the evidence the court will actually find admissible. In Hearsay in Family Law, Livesay & Myers divorce attorney Ariel Baniowski tackled one of the most commonly misunderstood areas of evidentiary law: hearsay. Ariel explained what hearsay is and what the rule against hearsay prohibits, and specifically how the hearsay rule comes into play within the realm of family law. In this article, I will explore the hearsay rule as it relates to criminal law.
As Ariel explained, hearsay is an out of court statement being offered in court to prove the truth of the matter asserted. Example: John is testifying. John says “Suzy told me yesterday that she hates the color blue.” John repeating Suzy’s statement on the stand is hearsay if offered for the purpose of proving that Suzy does in fact hate the color blue. If the statement is being offered for some other purpose (such as proving Suzy’s state of mind at the time she made the statement), then it may be admissible for that alternate purpose.
Hearsay is inadmissible in criminal cases in Virginia, except in limited circumstances. Virginia’s Rules of Evidence are codified within the Rules of the Supreme Court of Virginia. Rule 2:803 contains various exceptions to the hearsay rule, several of which frequently come into play in criminal cases. Below I will address three of these hearsay exceptions which are often misunderstood, and clarify the limitations of each of these three exceptions.
(1) Defendant Statements vs. Complaining Witness Statements
Whereas a civil case typically has a plaintiff and a defendant, in a criminal case the parties are the defendant and the Commonwealth of Virginia. In a civil case, either party’s out of court statements can be admitted against that party by the opposing party, as an “admission of a party opponent.” Following that logic, criminal defendants often expect that all statements made by an alleged victim or “complaining witness” will be be admissible in the criminal trial. They are not, because victims are not party opponents to criminal cases. In order to admit out of court statements of an alleged victim or complaining witness, another hearsay exception must be used. However, defendants of course are treated as party opponents in criminal cases– meaning anything said out of court by a defendant, any admission, can be used against that defendant in court. In other words, the “admission of a party opponent” hearsay exception is a one-way street in criminal cases.
This specific wrinkle is why it is so important to be represented by an attorney who does understand the limitations and proper usage of an alleged victim’s statements. For example, an attorney might offer the victim’s prior out of court statement for some purpose other than “to prove the truth of the matter asserted.” A victim whose testimony in court differs from what was initially said to law enforcement could be impeached or confronted with the contradictory or inconsistent statement. A victim’s prior out of court statements could also be offered for the purpose of showing how that statement affected someone else. Ultimately, it is always a question of purpose. Unlike in a civil case, the words of a complaining witness are not admissible based solely on who made them and thus they must be offered for another purpose to avoid a hearsay objection.
(2) Medical Records vs. Statements Made for Medical Diagnosis or Treatment
A second hearsay exception that is frequently misunderstood as it relates to criminal cases is the exception for statements made for the purposes of medical diagnosis or treatment. This hearsay exception is stated in Virginia Rule 2:803 (4), which provides that:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
This exception does not allow the admission of medical records in their entirety, or even a doctor’s report in its entirety. It only covers statements made for the purpose of medical diagnosis or treatment. Example: say Joannie claims she was sexually assaulted. Joannie while she is being examined talks off and on about the attack, who she thinks her accuser was, her injuries, etc. The doctor takes diligent notes of everything that Joannie says, as doctors do, and includes them in his report and examination record. Should this doctor’s notes within Joannie’s medical records be admitted in their entirety? Or should the doctor’s testimony about what Joannie said be admitted in its entirety? No. Not everything Joannie said to the doctor was for the purpose of diagnosis or treatment– only statements made for those purposes will be admissible under this hearsay exception.
The public policy reason behind this exception to the hearsay rule is one of reliability. The assumption is that someone will definitely be truthful in making statements to their doctor for purposes of medical diagnosis or treatment, out of simple self-preservation. We want the doctor to be able to accurately assess and treat our medical condition, after all. However, back to our example– all those other statements Joannie made to the doctor were not necessarily truthful simply because Joannie made them to a doctor. Statements made to the doctor not specifically for the purposes of diagnosis or treatment are simply not as inherently trustworthy– and so are not made admissible by this hearsay exception.
(3) Victim Statements: the Recent Complaint Doctrine
The recent complaint doctrine is another limited exception to the rule against hearsay. I explained this exception in detail in The “Recent Complaint of Sexual Assault” Hearsay Exception in Virginia, but it’s worth mentioning again here because it’s another hearsay exception that is frequently misunderstood.
The recent complaint exception is stated in Virginia Rule 2:803 (23), which provides that:
In any prosecution for criminal sexual assault under Article 7… the fact that the person injured made complaint of the offense recently after commission of the offense is admissible, not as independent evidence of the offense, but for the purpose of corroborating the testimony of the complaining witness.
This very limited hearsay exception allows a witness to state only that a complaint of sexual assault was made on a certain day. The details of the complaint and the full statement itself are not admissible under this exception. This exception merely allows the prosecution to admit into evidence the fact that the alleged victim made a complaint, in other words that the victim reported the assault either to law enforcement or to a third party. This exception does not allow the prosecution or the defense attorney to offer the statement made by the complaining witness shortly after the alleged assault took place in its entirety.
The hearsay rule (with its many exceptions) is complex and frequently misunderstood. Its application differs greatly between the fields of criminal and civil law. Having an experienced defense attorney who knows the rules and how to argue them can make all the difference in a criminal trial. The criminal lawyers at Livesay & Myers have extensive experience with hearsay evidence and other evidentiary issues in the courts of Northern Virginia. Contact us to schedule a consultation today.