Getting Hearsay Evidence Excluded from Your Maryland Criminal Case (Even If Your Trial Judge Misstates the Rules)

Hearsay evidence is generally inadmissible. Hearsay evidence also can be incredibly harmful to an accused person in a criminal case. It can fill in crucial gaps in the state’s case or work to bolster the credibility of a key prosecution witness. Hearsay evidence doesn’t just exclude itself; it requires a well-timed and well-articulated motion by the defense. When it comes to accomplishing this and other crucial goals of your defense, make sure you have a skilled Maryland criminal defense lawyer advocating for you.

The theft and assault case of a Baltimore-area woman is a good example. S.S. was on trial for assault and for stealing $300-$500 of merchandise at a party supplies store.

The case arose after the store’s assistant manager allegedly spotted the accused woman stuffing numerous party favor balls into a “really big purse.” The manager confronted S.S. at the store’s exit, at which point the accused allegedly kicked the manager in the leg. Later, S.S. allegedly punched a cashier in the face.

After the accused drove away in her vehicle, a Baltimore County police officer arrived at the scene. He spoke to the manager and the cashier, each of whom told him their version of events.

At S.S.’s trial, the state introduced the manager and the cashier as witnesses. The state also played footage from the police officer’s body cam. That footage included the manager and the cashier telling the officer their version of events. The defense objected but the judge overruled the objection.

That wrongfully admitted evidence ultimately was the key to S.S.’s legal team getting the conviction overturned and getting S.S. a new trial.

S.S.’s trial is instructive in many ways, including issues of procedure. At trial, the state began playing the audio from the officer’s body cam. The defense objected, arguing that the audio constituted inadmissible hearsay. The judge responded by asking “isn’t the body worn camera an exception to the hearsay rule?”

The Importance of an Objection Made ‘For Formality Sake’

A non-lawyer might not have known what to do and merely given up, perhaps saying something like “Oh, OK.” S.S.’s lawyer was not prepared to argue the judge’s incorrect statement of Maryland’s hearsay rules, but still wisely said, “I appreciate that. I just [state my objection] for formality sake.”

That was critical because even if a trial judge has made a mistake, you potentially can still lose on appeal. You can lose if what you said (or didn’t say) during the trial constituted a waiver or represented a failure “to preserve” an argument for appeal. When that happens, the appeals court simply will affirm the ruling of the lower court.

The defense’s objection “for formality” was enough to indicate a lack of waiver and preserve the issue, allowing the appeals court to address the underlying hearsay question.

Maryland’s evidence rules allow for the introduction of police body cam footage. However, the rules say that if the footage played at trial contains any “hearsay statements,” the prosecution has to argue successfully that those statements were within one or more of the rules’ exceptions to the general prohibition of hearsay.

In S.S.’s case, the prosecution never argued at trial or on appeal that any exceptions applied. That made the manager and the cashier’s statements recorded by the body cam inadmissible hearsay. Because the crux of the trial was a “she-said-she-said” case of credibility, allowing inadmissible hearsay evidence that bolstered the testimony of two of the state’s key witnesses was harmful enough to require a new trial.

Successful criminal defense is comprised of many things. Some may be obvious, like debunking the credibility of a central prosecution witness. Others are more subtle, like making an appropriate objection at the right time. But they’re all important and the right legal team can provide you with representation that covers all these bases. The experienced Maryland criminal defense attorneys at Anthony A. Fatemi, LLC offer that kind of diligent, thorough, and effective defense advocacy to our clients. Contact us today at 301-519-2801 or via our online form today.

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