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Can Prosecutors Introduce Evidence From A Witness Who Cannot Testify At The Trial?


A crucial legal protection for anyone on trial for a crime is the right to confront and cross-examine the witnesses against them. The Sixth Amendment’s “Confrontation Clause” guarantees this right. In general, this means that with few exceptions, a prosecutor cannot introduce as evidence any out-of-court hearsay statements made by a person who is unavailable to testify in-person at trial.

Supreme Court Throws Out New York Murder Conviction Based on Inadmissible Hearsay

The United States Supreme Court recently affirmed the importance of this principle in a decision, Hemphill v. New York, where prosecutors used statements made by one defendant during a plea bargain hearing at the trial of another defendant. This case began in 2006, when a fight broke out between several individuals in Bronx County, New York. During the fight, someone fired a 9-millimeter handgun. The bullet fired struck and killed a 2-year-old girl.

New York City police initially identified two persons of interest, named Gilliam and Morris, in connection with the shooting. Police searched Morris’ apartment and recovered both a 9-millimeter cartridge and ammunition for a .357-magnum revolver. Multiple eyewitnesses then identified Morris as the shooter.

Gilliam subsequently told the police that Morris, his best friend, was the shooter. But Gilliam then recanted and identified a third man–the defendant in this case–as the shooter. The police did not believe Gilliam at the time and proceeded to charge Morris with the murder and illegal possession of a 9-millimeter handgun.

Just as Morris’ trial began, however, New York prosecutors decided to reconsider their evidence. They decided to dismiss the murder charges in exchange for Morris pleading guilty to possession of a .357 magnum–not a 9-millimeter as originally charged. The state did not actually have sufficient evidence to convict Morris of this crime–indeed, Morris’ attorney objected to the plea deal–but Morris accepted and admitted to the crime in court so he would be released from jail.

Several years later, police obtained new evidence that implicated the defendant as the actual shooter. At the defendant’s murder trial, he argued that Morris was the shooter, as the police and the state had initially believed. Morris himself was out of the country and unavailable to testify. So the prosecution sought to introduce the transcript of Morris’ plea hearing, where he only admitted to possession of the .357, which was not the weapon that killed the girl. The defendant objected on Sixth Amendment grounds, but the judge allowed the evidence based on an exception in New York law allowing the admission of otherwise inadmissible testimony that was “reasonably necessary to correct [a] misleading impression” made by the defense.

The Supreme Court held that this New York exception was itself unconstitutional. The Court said the purpose of the Confrontation Clause was to ensure that the method used to test the reliability of evidence was in-court confrontation and cross-examination. It was not the role of the trial judge to admit hearsay in order to correct what they considered a “misleading impression” offered by the defendant.

Contact Orlando Criminal Defense Attorney Jose Baez Today

When you are the person on trial, you have every right to demand that prosecutors and judges follow the proper procedures. A qualified Orlando homicide lawyer can help you in asserting these basic rights. Contact the Baez Law Firm today if you need to speak with a criminal defense attorney.


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