On Hearsay

“Hear” a Say, “There” a Say, Everywhere a Say-Say: The Hearsay Rule and Statements Against Penal Interest

By Ken K. Gourdin

Martin MacNeill, recently convicted of killing his wife, is attempting to have his conviction set aside because his attorneys contend that prosecutors allegedly improperly induced an inmate to testify that MacNeill told the inmate that he (MacNeill) had killed his wife. Another poster said (paraphrasing), “Why are we even having this conversation?  Hearsay is inadmissible, isn’t it?” Here is a Salt Lake Tribune account of the situation, last accessed today: http://www.sltrib.com/sltrib/news/57512284-78/inmate-macneill-trial-case.html.csp.

Hearsay is defined as (1) an out-of-court statement that is (2) offered to prove the truth of the matter asserted. You’re right that the inmate testifying to what MacNeill allegedly told him is hearsay. However, there are numerous exceptions to the rule that hearsay generally is inadmissible. One of the exceptions to the hearsay rule is when the person making the statement makes an admission that is against his own penal interest.

The rationale for the “against penal interest” exception is that generally, in conversation, people don’t tell other people they committed a serious crime when they did not. (True, Barry Blowhard might simply be trying to increase his “street cred,” impress his listeners, and convince them he’s a bad-arse by telling them he did all kinds of bad stuff he didn’t actually do, and a defense attorney is free to make that argument.)

But bottom line, MacNeill’s alleged admission to his fellow inmate would still be admissible.

Completely ignoring the caveat in my second paragraph, above (while, at the same time, essentially repeating it—I love it when people ignore the points I make so they can claim they thought of them first), my correspondent said, in essence [though not in so many words], “People behind bars lie all the time: it increases their ‘street cred.'”  I reposted the second and third paragraphs of my previous response and invited my correspondent to read them again (this time for comprehension).  I then added:

If you disagree with the general rationale underlying this exception, that people in general don’t lie by saying they did things they actually didn’t do, or if you think the hearsay rule should be changed to disallow statements by prisoners behind bars (and even if you want to use Martin MacNeill as your “Poster Child”), you’re free to do so.  Until then, the hearsay rule and its exceptions are what they are.


About kenngo1969

Just as others must breathe to live, I must write. I have been writing creatively almost ever since I learned to write, period! I have written fiction, book- and article-length nonfiction, award-winning poetry, news, sports, features, and op-eds. I hope, one day, to write some motivational nonfiction, a decent-selling novel, a stage play, and a screen play.
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