You Can't Impeach The State

Even non-lawyers know about hearsay. The word pops up often in casual conversation, as in, "that’s just hearsay." Folks want to dismiss such statements as carrying little weight.

The lawyer’s definition of hearsay is as follows: "An out-of-court statement made for the truth of the matter asserted." Thus a man walks in all agog. "I’ve heard they’re selling cheese on the dark side of the Moon," he says. That statement cannot be used to prove that there is a cheese sale. It just isn’t reliable. What he heard outside of court, that there is a sale on the dark side of the Moon, simply can’t be tested in court, in this case for good reason.

There are many exceptions to the rule prohibiting the use of out-of-court statements to prove the truth of the matter asserted. They include statements against penal interest and the admissions of opposing parties. In criminal cases, where a defendant has the right to remain silent, words put into the mouth of the defendant by those testifying about what he said outside the courtroom can be fatal. Confessions, for example, may be good for soul, but they wreak havoc on one’s Earthly prospects.

But here’s an interesting twist on the law, one that illustrates clearly why despite the presumption of innocence, the law is tilted in favor of the prosecution.

The caption of almost any legal proceeding bears the name of the parties. Thus State v. You might be a case in which your liberty is on the line. In support of a conviction, the party prosecuting you, the state, can offer your out-of-court statements. Can you turn the tables and offer the state’s out-of-court statements against your adversary?

Think on it for a moment. There is no state. You will never meet the entity prosecuting you. Present in court will be a prosecutor, acting on behalf of the state. And witnesses will be called by the state, most often police officers, who were working as agents of the state when they gathered evidence against you. But, at least in Connecticut, you can’t offer the out-of-court statements of the state’s agents against the state.

Why is that you ask? The Connecticut Supreme Court has ruled that the state is not a party in a criminal case. Oh, logic, whence have you fled? If my client is in court without a party pursuing him and trying to put him in jail, then why are we in court?

The issue arose in a transcript I reviewed in preparation for an appeal. The defendant was convicted of assault on a police officer, and sentenced to a year in prison. The officer claimed at trial to suffer an injury. Under Connecticut law, he had but to claim he experienced pain and that constitutes injury enough to expose a defendant to both a felony conviction and imprisonment.

When the trial lawyer for the defendant tried to introduce evidence through a third party that the officer had once disclaimed pain, the court sustained the objection, ruling that the it was hearsay, an out-of-court statement offered to prove the truth of the matter asserted, to wit: that the officer had once walked away from his claim of pain.

Had the defendant made a similar statement, the state would have been able to introduce it. It seems unfair to permit the state to fish out of court for miscellaneous statements of a defendant, while not permitting the defendant to do likewise. In civil cases, the out-of-court statements of agents for corporate parties can be used against the corporation. Why can’t such statements be used in criminal cases against a corporate entity with vast power?

Comments (2)
Posted on June 5, 2011 at 8:29 pm by Norm Pattis
Law is more or less same here as to impeachment of witness, but a prior inconsistent statement can't be used substantively. What you cannot do is impeach collaterally with admissions of others

Posted on June 5, 2011 at 3:19 pm by Lyndsey
Georgia law
That's interesting. In Georgia, one can be impeached with prior inconsistent statements, and the jury can use that prior statement as evidence as long as the statement referred to a material fact in the case. The method would be to ask the witness if he had ever disclaimed having pain; if he denied it, you could present the witness who heard the officer disclaim the pain. Does Connecticut not have a similar method of impeaching witnesses?
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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