Say That Again: Getting the Most Out of Hearsay Objections

If there’s one evidentiary issue that you will encounter in your next jury trial, it’s hearsay. It comes up all the time, and some lawyers and judges don’t have a firm grasp on it or its exceptions. Beyond that, trial lawyers often stop short of fully developing their record because they fail to make an objection under the Federal and Georgia Constitutional Confrontation Clause.

When you or some other appellate lawyer get ready to appeal a possible conviction, you will wish that the objection had been “constitutionalized” for appeal. As a start, just say, “Objection, the evidence that counsel is eliciting is hearsay. The testimony would also violate my client’s rights under the United States and Georgia Confrontation Clause.” If you think you might forget, you could also consider filing a motion to constitutionalize ever hearsay objection. Beyond that, it’s really important to get to know the Confrontation clause a little better. Below are some Confrontation Clause resources:

• The Confrontation Blog. Professor Richard Friedman at the University of Michigan Law School has maintained a blog on the Confrontation Clause since 2004. It does not get updated as much as is it did in the heady days after the United States Supreme Court issued the Crawford v. Washington decision. But major developments since Crawford can be found there.
• Wikipedia. Don’t cite it in Court, but use it as a good starting resource for the Confrontation clause. Their entry on the Confrontation Clause and on the Crawford decision are good places to turn for an overview refresher on the subject.
• Key Cases. Read them and know them. Put them on your trial tool box. Obviously, Crawford is the biggest Confrontation case in the past 100 years. So have a copy ready in Court highlighted and underlined. There have been three other important cases since Crawford. One is Davis v. Washington, that clarifies what testimonial hearsay is (it generally is not a 911 call).  The other is the Melendez-Diaz case, from 2009, holding that sworn affidavits from a crime lab are testimonial in nature. In Giles v. California, the act of killing a witness is not a forfeiture of the right to be confronted unless a trial court finds that the motive for murder was to silence the victim’s testimony.

The opportunities to develop the law in the area of Confrontation abound. Much appellate litigation remains in this area of the law. For instance, is every 911 call non-testimonial? What if it isn’t truly an emergency but an attempt to preserve a story? What about statements of confidential informants?

Bottom line, don’t just make a hearsay objection. Object under the Confrontation clause. And don’t just object under the Federal Confrontation Clause. Object under the Georgia Confrontation Clause as well. You’ll have more options for appeal than a simple hearsay issue, most of which are resolved under a prosecution-friendly standard of review. Let the key cases be a guide on how to voir dire witnesses and develop your arguments at the trial court level so that you have an opportunity to develop the law and win your case on appeal later.