Hearsay
Form of Objection
· The question calls for [proffered answer entails] [multiple] hearsay [because—see Part 2 below, Making a Proper Record in Criminal and Civil Cases, on adding more detail depending on the trial judge and the need to preserve the issue for appeal].
General Rule
· Evidence that rests, in part, on the veracity and competency of any out-of-court assertion made by somebody other than the witness is inadmissible to prove the truth of the matter asserted. Note: The traditional rule considered the witness’s own out-of-court statements to be hearsay. See K. Broun, McCormick on Evidence §251, pp. 148–50 (Thomson Reuters 6th ed. 2006), cited in Bell, Courtroom Handbook on Missouri Evidence, 33 Missouri Practice Series §800.1, p. 616 (Thomson Reuters 2021). More recent cases allow a witness to testify if the statements are based on the declarant’s personal knowledge rather than relating what someone else asserted. Mo. Evidence Restated §801.C, p. 369 (MoBar 6th ed. 2021).
· For example:
- Objection: Admission of the statement violates defendant’s constitutional right to confront the witness under the Sixth Amendment to the U.S. Constitution because the statement is testimonial.
- Objection: Admission of the statement violates the defendant’s rights under the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution because the nontestimonial statement is unreliable.
- Objection: Admission of the statement of a nontestifying co-defendant violates defendant’s constitutional right to confront the witness under the Sixth Amendment to the U.S. Constitution because the co-defendant is not available for cross-examination.
· Hearsay statements may be objectionable because they violate the defendant’s right to confront the witnesses under the Sixth Amendment of the U.S. Constitution when the witness is unavailable and the hearsay statement is “testimonial.” Crawford v. Washington, 541 U.S. 36 (2004).
· Missouri courts have addressed the interface between the confrontation clause in the U.S. and the Missouri constitutions and rules of evidence. See State v. Hoover, 220 S.W.3d 395 (Mo. App. E.D. 2007) (testimony of the police officer about co-conspirator’s out-of-court statements was not admissible); State v. Washington, 260 S.W.3d 875 (Mo. App. E.D. 2008) (statements introduced to explain subsequent police conduct did not require reversal of the trial court judgment).
· In Hemphill v. New York, 142 S. Ct. 681 (2022), the...
