Direct, Hearsay, and [Proper] Bolstering
Written by NITA guest blogger Professor Jules Epstein
It is a fundamental tenet that a witness has to present a ‘fresh’ version of her story, and may not be asked or permitted to say “well, here is what I told my friends.” It is not what the jury came to hear; and if coupled with an in-court version is condemned as “improper bolstering [, which] occurs when an out-of-court statement is offered solely to duplicate or corroborate trial testimony.” State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008).
But this statement of law is actually incorrect. Many out-of-court statements may be used to duplicate trial testimony – as long as they have independent hearsay admissibility.
Let’s start with Rule 803, which permits the hearsay of anyone. And “anyone” includes the testifying witness. That is apparent from the definition: “’Hearsay’ means a statement that…the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence.” Fed.R.Evid. 803. Nowhere does the Rule say, or even imply, that the declarant and the testifying witness must be different people. But see Brisbon v. United States, 894 A.2d 1121, 1128 (D.C. 2006)(questioning whether a criminal defendant may testify to his own alleged excited utterance).
A witness repeating her own hearsay is not atypical. A rape complainant may testify to the assault and then read the jury her excited utterance text message that also details the crime. See, e.g., State v. Young, 2016-Ohio-7477 (Ct. App.). The same is true with a present sense impression, a statement made for medical diagnosis and treatment, or a contemporaneous entry into the declarant’s own business record.
What is the power of this? Repetition, which breeds believability. Consider this example:
Q: Where were you when the accident occurred?
A: Right on the corner.
Q: And what did you see?
A: This big car, it was red, ran the light, hit the child and drove off.
Q: Where you able to see the license plate?
A: Yes, it was XDS123
Q: What’s the first thing you did?
A: I had my phone open, as I was about to text my mom, so I typed down the license.
Q: Please read and show us what you typed.
Q: What’s the very next thing you did?
A: I was blown away, I dialed 911 and screamed what happened?
Q: I am going to play a tape [911 call]. “Oh my god, hit and run, red car, XDS123.” Was that your voice?
Q: And is that what happened?
This repetition of out-of-court assertions may also occur if the statement is admissible under the 807 ‘catch-all’ residual hearsay exception.
There is a second way prior statements are admissible on direct examination – when they are consistent with the witness’ live testimony and rebut a claim of recent fabrication or corrupt motive made in the opposing party’s opening statement. The proponent of the witness need not defer the use of a prior consistent statement until after cross-examination – the ‘impeachment’ has already occurred. See, e.g., State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008)(attack in opening statement allows use of prior consistent statement under 801(d)(1)(B)).
There is little an opponent can do. The independent admissibility of each hearsay statement warrants its use, precluding a bolstering objection. All that remain are objections under Rules 403 and 611 that the repetition is cumulative and unnecessary, but given the presumed reliability of each hearsay exception, these arguments will be difficult to make until much damage is done.
[Professor Jules Epstein is the Director of Advocacy Programs at Temple Beasley School of Law in Philadelphia, PA.]
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