Dan was charged with arson. The prosecution attempted to prove that he burned down his failing business to get the insurance proceeds. It is uncontested that the fire was started with gasoline. At a jury trial, the following occurred:
The prosecution called Neighbor, who testified that fifteen minutes after the fire broke out, he saw a blue Corvette speed from the scene.
The prosecution next called Detective Pry. Pry testified that he checked Motor Vehicle Department records and found that a blue Corvette was registered to Dan. Pry also testified that he observed a blue Corvette in the driveway of Dan’s house.
The prosecution then called Scribe, the bookkeeper for Dan’s business. Scribe testified that, two months before the fire, Dan told Scribe to record some phony accounts receivable to increase his chances of obtaining a loan from Bank. Scribe then testified that she created and recorded an account receivable from a fictitious entity in the amount of $250,000, but that Bank denied the loan anyway. Scribe further testified that, two days after the fire, Dan again told her to create some phony accounts receivable, but that she refused to do so.
The prosecution called Jan, the night janitor at Dan’s business, to testify that the evening before the fire, as Jan was walking past Dan’s office, Jan heard a male voice say, “Gasoline is the best fire starter.” Jan knew Dan’s voice, but because the office door was closed and the voice muffled, Jan could not testify that the voice was Dan’s.
Assume that, in each instance, all appropriate objections were made.
Should the court have admitted:
- Detective Pry’s testimony? Discuss.
- Scribe’s testimony? Discuss.
- Jan’s testimony? Discuss.
This answer provided by Scott F. Pearce, www.passthebar.com.
Dan was tried for arson before a jury. As a criminal defendant, Dan can offer objections to evidence based either on the law of evidence or the constitutional protections offered by the law of criminal procedure. Like a civil plaintiff, the prosecutor in criminal court must show that each item of evidence is relevant and not subject to objection.
I. Detective Pry’s Testimony
Detective Pry was called by the prosecution as part of its case in chief against Dan. The detective offered two different pieces of testimony, each of which will be considered in turn.
A. DMV records indicate that Dan owns a blue Corvette.
Neighbor, the witness the prosecutor called before Detective Pry, testified that he saw a blue Corvette speed from the scene of the arson. Dan’s ownership of a blue Corvette would show that it was possible Dan set the fire and then fled the scene of the crime, which is the prosecutor’s theory of the case.
2. Objection: Hearsay � Business Records Exception
Detective Pry testified that he checked Motor Vehicle Department records and found that Dan is the registered owner of a blue Corvette. The records the detective refers to constitute an out of court statement which the detective is offering to prove the truth of the matter asserted. The business records exception to the hearsay rule would allow these records into evidence over a hearsay objection, but the prosecutor would have to overcome another potential objection, discussed below, before this part of the detective’s testimony could be admitted into evidence.
3. Objection: Best Evidence
It appears Detective Pry is testifying about the results of his check of records without bringing the records themselves into court. The defense has a right to examine the records the detective is testifying about, to check their veracity and to consider an appropriate response. If Detective Fry brings the original records or a certified copy to court, the best evidence rule will be satisfied. Otherwise, the court should not have admitted this part of his testimony.
The court should not have admitted this part of Detective Pry’s testimony unless the detective brought the original or a certified copy of the Motor Vehicle Department records.
B. Detective Pry observed a blue Corvette in the driveway to Dan’s house.
Detective Pry’s testimony about his observations is relevant because it suggests Dan could have been the owner of the car Neighbor referred to in his testimony. This aspect of Detective Pry’s testimony supports the prosecutor’s theory that Dan set the fire.
2. Objection: 4th Amendment
A criminal defendant has a right to be free from unreasonable searches and seizures. Although it is true that Detective Fry did not have a search warrant, it appears his observations were made from a public place. A criminal defendant does not have a reasonable expectation of privacy in those things that are open to public view, such as a vehicle parked in a privately owned driveway. Thus, the 4th Amendment will not give Dan a way to attack the admissibility of the detective’s testimony.
3. Objection: 5th Amendment
A criminal defendant has the right to be free from testifying against himself. In this case, however, the detective is not testifying about alleged statements made by the defendant pursuant to a custodial interrogation but instead about his own observations. Accordingly, the 5th Amendment will not prevent this aspect of the detective’s testimony from coming in.
4. Objection: 6th Amendment
The 6th Amendment gives criminal defendants the right to counsel and the right to confront adverse witnesses. In this case, Dan appears to be represented by counsel at trial. Since Detective Pry is on the witness stand, Dan can confront the witness. Dan did not have the right to have counsel monitor the detective’s investigation as it was progressing, because the detective was not trying to question Dan at the time he observed the blue Corvette in Dan’s driveway.
The court should have admitted the detective’s testimony about observing a blue Corvette in the defendant’s driveway.
The court should not have admitted the detective’s testimony about the Motor Vehicle records unless the best evidence rule was satisfied. The court should have admitted the detective’s testimony about seeing the Corvette in the defendant’s driveway.
II. Scribe’s Testimony
The prosecutor called Scribe to the witness stand after Detective Pry had completed his testimony. Scribe offered three pieces of testimonial evidence against Dan, each of which is examined below.
A. Dan told Scribe to fake records to qualify for a loan
This testimony, if believed, would lead the trier of fact to conclude that, since Dan is willing to commit fraud in an effort to get money from a bank, he would be more likely to set a fire to get money from his insurance company. Thus, the prosecutor would argue that Scribe’s testimony is relevant to the arson case against Dan.
Dan would argue that this testimony is highly prejudicial, and that this prejudice outweighs any probative value it might have. It would seem within the judge’s discretion to conclude either way on the prejudice vs. probative value issue.
2. Objection: Hearsay � Declaration Against Interest; Catchall Exception
This part of Scribe’s testimony refers to an alleged out of court statement by the defendant, which is being offered in court to prove the proof of the matter asserted. The statement likely qualifies as a declaration against interest. Furthermore, the court could choose to admit the testimony based on the catchall exception, if the court found that the testimony was sufficiently probative.
3. Objection: Improper Character Evidence � Specific Acts
The defense also will object that this aspect of Scribe’s testimony is inadmissible character evidence of specific uncharged bad acts. This sort of testimony is admissible to show motive, intent, etc., pursuant to the MIMIC rule. Again, the judge must examine the issue of whether the probative value of the testimony outweighs the high prejudice the defendant is likely to suffer if it is admitted.
It would not be an abuse of judicial discretion for the court to admit this part of Scribe’s testimony.
B. Scribe creates phony record, bank declines the loan
1. Relevance � Questionable
Scribe’s act of completing the phony record might show that Dan in fact tried to get the loan with dishonest documentation. The fact that the bank turned down the loan might have given Dan a motive to commit the arson to get money from the insurance company two months later.
2. Objection: Hearsay as to bank’s reply � maybe no exception
Scribe testifies that the bank declined the loan anyway. This rejection by the bank is an out of court statement that is being offered to prove the truth of the matter asserted. It does not appear that there is any exception to the hearsay rule that would admit this testimony. If Scribe had the original of the rejection letter, it might qualify as a business record.
The court should not have admitted this part of Scribe’s testimony. The testimony is hearsay, and it does not satisfy the best evidence rule.
C. Dan orders second phony record after the fire, Scribe refuses
This part of Scribe’s testimony raises the same issues as the first part, discussed above. The testimony is logically relevant because it suggests that Dan is dishonest. It also may be more prejudicial than probative.
2. Objections similar to the first part of Scribe’s testimony
Again, the defense would object on the basis of hearsay and improper character evidence. The prosecutor’s replies would be the same. The judge would face the same issues discussed above in response to the first aspect of Scribe’s testimony.
It was not an abuse of discretion for the court to admit this part of Scribe’s testimony.
The court was within its rights to admit Scribe’s testimony about the defendant’s efforts to defraud others with faked financial records. Scribe’s testimony about the bank’s refusal of the loan application should not have been admitted.
III. Jan’s Testimony about Overheard Comments
Jan is the night janitor at Dan’s business, and testifies that she overheard a male voice inside Dan’s office say, “Gasoline is the best fire starter.” Jan’s testimony is relevant because it suggests Dan is guilty of the arson charge he faces at the trial.
B. Objection: Hearsay � Effect on the Listener, Admission, Declaration against Interest
The statement Jan overheard was made out of court, and it is being offered in court. There are two different exceptions to the hearsay rule that could allow the testimony in over a hearsay objection. The first is that Jan is testifying to the statement not to prove the truth of the matter asserted, but merely to show that the statement had the effect on Jan of alerting her to the fact that an act of arson apparently was being planned by an unidentified speaker in Dan’s office.
It also is possible that the statement Jan is testifying about could be admitted because the statement is an admission or a declaration against interest. Under the federal rules, an admission is deemed non-hearsay; in other jurisdictions admissions are an exception to the hearsay rule. A declaration against interest is an exception to the hearsay rule under federal or state rules of evidence.
C. Objection: 5th Amendment
A criminal defendant has a right not to be compelled to testify against himself or herself at trial. In this case, however, the witness has not been able to positively identify the voice as Dan’s. Furthermore, the statement Jan is testifying about was not the product of a custodial interrogation. Consequently, Dan will fail to keep this testimony out on 5th Amendment grounds.
Jan’s testimony is circumstantial evidence of Dan’s guilt. The court should have admitted it.