The law of evidence governs what is and is not admissible in a trial. A judge’s decision on what a jury hears could quite literally be the difference between freedom and imprisonment, and, in some cases, between life and death. Just ask Larry Johnson.
Earlier this year, Brittany Paz, Jim Nugent and I defended Mr. Johnson in New Haven against a charge of murder. Our defense was that some third party, and not Mr. Johnson, had fired the fatal shot. The law calls such a defense third-party culpability; lawyers have a more casual name for such a defense — “some other dude did it.”
The shooting took place in the early morning hours . A man walked up to the victim, and fired several shots point blank at him. Just after the shots were fired, a witness standing on a nearby porch exclaimed: “Damn, Shane. Why you did that?"
Pivotal to the defense was getting a jury to hear this statement. There was no evidence that our client was known to anyone as Shane. Nor was there any other evidence that a man named Shane was at the scene. Police investigators tried to find out who Shane was, and failed. Our investigator was similarly unable to find any evidence that Shane existed.
But why would someone say such a thing?
We subpoenaed the young woman who heard the remark. She was reluctant to come to court, refusing to honor the summons. That was understandable enough. Just what she was doing at the murder scene raised questions I am sure she would rather not answer under oath in open court.
We asked for a court order to have her seized and brought to court under the authority of a capias, or bench, warrant. A state marshal located her, handcuffed her, and brought her to the courtroom. Needless to say, she was not exactly happy to find herself later that day on the witness stand.
Before she could appear before the jury, the state asked for an offer of proof. We were required to tell the judge what we expected the witness to say. There was really no mystery to it – the state had provided us the police report in which she was reported to have heard the remark.
“Hearsay,” the prosecutor objected, when we told the court we intended to offer the comment about Shane.
Technically, the prosecution was right. But there are many exceptions to the hearsay rule. Larry’s freedom depended on persuading the judge this was one of them.
The textbook definition of hearsay is an out-of-court statement to prove the truth of the matter asserted. It is evidence in which a person on the witness stand repeats what they heard another say. It is a decidedly tricky rule.
Suppose a witness states: “Mary said they were selling green cheese on the dark side of the moon.” The statement cannot be offered to prove that Mary was right, and that Camembert was, in fact, a lunar sale item. That would be hearsay: Mary’s admittedly crazy assertion about the sale of cheese cannot be offered to prove that the sale took place.
But doesn’t her assertion about the sale speak volumes about Mary? She’s either crazy, a prankster or otherwise deceptive, right? The statement might be admitted into evidence not for the truth of the matter asserted — that there was a sale of cheese on the moon — but to reflect Mary’s state of mind. It’s a subtle distinction, to be sure.
Often statements that would qualify as hearsay are accepted for the truth of the matter asserted. That is because the courts have decided that certain classes of hearsay statements are reliable. Hence, statements we make to doctors are admissible — we reason that no one would deceive their doctor when it comes to their own health. And business records are typically admissible — the regularly recorded activities of a firm are thought to be reliable enough for court work.
In the Johnson case, we relied on an exception to the hearsay rule governing spontaneous, or excited, utterances. These are statements made in the wake of a shocking or startling act, or set of circumstances. The law reasons that what a person says in such moments is reliable because there is no time for guile, for mistake, for distortion of perception to seep in. An excited utterance is an existential snapshot, a recording, of what is perceived while under the influence of the stress of an unusual event.
It seemed fairly obvious that a person standing on a front porch watching someone get shot to death is a shocking and stressful circumstance, even in some of New Haven’s more violent neighborhoods. Yet the state argued against admissibility of the statement.
“It’s not even clear that the witness even said what the witness reports,” the state argued. “The declarant” — that’s what the law calls a person who says something — “might have been saying “It’s a damn shame,’” the state argued. It was a ridiculous argument, born of desperation. The judge rejected it. In legal speak, what weight, what significance, to give to the utterance was up to the jury; it was admissible.
I’ll never know what the jury thought of this witness, or even why the jurors voted, unanimously, to acquit Mr. Johnson of the crime of murder. Although the rules of court permit lawyers to speak to jurors after a case has been decided, I can’t recall a case in which I tracked down a former juror to discuss their verdict. The work of jurors is sacrosanct, in my view. Whether I win or lose I am reluctant to intrude.
But one of the jurors in Mr. Johnson’s case did send me a note after the case had ended. The state had argued during closing statements its “damn shame” theory of the excited utterance. I ridiculed the argument, suggesting that the state was suggesting life on the dark side of New Haven’s streets was governed by the Marquess of Queensbury’s rules — rules governing the sport of boxing. The juror reported he nearly laughed aloud when he heard that.
Mr. Johnson smiled in relief when the verdict was reported in open court. As for Shane, I will never know whether he was there, or even whether he exists at all.