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Legal Matters: Chauvin trial elicits question on whether hearsay evidence is admissible

The trial of  Minneapolis police officer Derek Chauvin, accused in the death of George Floyd, prompted a question about how lawyers bring out information they want a judge or jury to consider.

Floyd is the 46-year-old African American man who died last year during an arrest after officer Chauvin held Floyd down, kneeling on Floyd’s neck — despite Floyd’s anguished statement, “I can’t breathe” — for more than nine minutes.  Floyd was arrested after a store clerk reported he attempted to make a purchase with a counterfeit bill.

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Two cautions: (1) jury deliberations may still be ongoing when this column is published and no argument on Chauvin’s actions is intended; (2) the trial is  being conducted under Minnesota rules of court, which may not be precisely the same as the Maryland rules. Rules of court in each state dictate procedures from how clerks issue summonses for witnesses  to which side can ask for a trial by jury (either can, if the issue meets criteria for a jury trial).

Rules of court cover matters such as how a prosecuting attorney gives notice that she has  evidence of additional offenses committed by the accused that she plans to offer at trial or how a defense attorney can ask to have a case dismissed.

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The court rules are intended to prevent unfair surprises. If  a prosecutor asks a witness, “Wasn’t the defendant also arrested and charged with bribery?” and the defense attorney had no way of learning about the prior offense, a judge may refuse to allow the prosecutor to question the witness about that  incident.

Then there are  hearsay rules. The Maryland rule starts with the flat statement that hearsay — a statement  made out of court that a witness later wants to testify is true because she heard the speaker say it — is inadmissible. The idea is that the statement may not be reliable because the speaker was not under oath at the time. But the rule — which took one paragraph to write — takes up five pages of exceptions in the Maryland rules handbook.

A hearsay statement may be admissible even when the person who said it earlier is still available to testify, if, for example, the statement was made by a co-conspirator. Another example: It may be admitted  if the speaker shouted, “The building is falling!”  but is unavailable to testify because he was killed by falling blocks.

Hearsay may also be admissible if, for example, two men plan to rob a bank and one later tells someone, “I’ve got to get a gun because Hank and I are robbing the bank tomorrow.” The speaker is not under oath, but his statement is likely to be admitted into evidence  if the bank is robbed and the bystander is called to testify at trial.

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If attorneys in the Chauvin case want to admit hearsay evidence and the judge denies it, are they stuck? Not completely. The exclusion of evidence may form the basis for an appeal of the judge’s ruling.

Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at denglelaw@gmail.com.

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