Saturday, May 12, 2012

Trial Tip: Dealing With Inferential Hearsay or Bolstering

by


Jill Paperno, Special Assistant Monroe County Public Defender


Often the DA will try to introduce hearsay testimony as well as what is considered inferential hearsay and bolstering testimony at trial.  They may ask an officer, "Did you talk to the witness Mr. So and So" and then ask the officer, "And after talking to that witness, did you arrest the defendant."  The testimony is trying to get the jury to infer that based on the conversation, which was likely inadmissible hearsay and bolstering of other evidence, the officer learned information that provided a basis to arrest the defendant.  In other words, the witness told the officer the defendant did it.  Perhaps this initial conversation was had with a witness who is not testifying at trial, or might not come in any way.  So the DA is trying to backdoor that the defendant was identified as the culprit right at the scene. 


In People v. Spicola, 16 NY3d 441  the Court of Appeals  addressed the definition of "bolstering": 


In People v Buie, 86 NY2d 501 (1995), we considered whether the admission of a 911 tape under the hearsay exception for present sense impression, where the declarant was available and testified at trial, improperly bolstered his trial testimony. We explained that the term “bolstering” has “doctrinally referred to two distinct situations, both related to the rule against hearsay” (id. at 509–510). The first common use of the term arose “in the context of eyewitness identification, [where] the testimony of a third party (typically, a police officer) to the effect that the witness identified a defendant as the perpetrator on some prior occasion [was] generally inadmissible” because the “identification evidence [was] hearsay, not falling within any exception” (id. at 510,). Second, the term “bolstering” “refers to the fortification of a witness's testimony and credibility through the use of a prior consistent statement ... Such evidence may be admissible, but only to rebut a claim of recent fabrication ... A prior consistent statement is admitted under these limited circumstances as an exception to the hearsay rule” ( id. [citations omitted] ). 


You should consider objecting on hearsay, inferential hearsay and/or bolstering grounds when you hear this type of testimony coming at trial.  Sometimes courts will permit it as narrative or background information, but if that happens request an instruction that it is not to be considered for the truth of the alleged statement. 


If you object and some or all of the testimony is kept out, listen carefully to the prosecutor's summation (which you should be doing anyway).  As we all know, there are a lot of errors that constitute misconduct going on in summations here in the Fourth Department.  In a recent trial, the prosecutor in my case argued to the jury that "you heard that (complainant) identified the defendant at the scene."   They never heard any such thing, in part, due to the objections that were sustained.  They did hear that my client was arrested at the scene over my objection, and the judge, over my repeated argument about inferential hearsay and bolstering,  did allow the prosecutor to say that he was arrested at the scene. 


Do not let the prosecutor belittle or demean the defense strategy at trial by characterizing it inappropriately.  The prosecutor in my recent trial argued that the defense was merely an effort to confuse the jury.  The judge sort of sustained my objection to the DA's argument that "you heard the defendant was identified at the scene " - letting  him argue that he was arrested at the scene, but not that he was identified and that the jury's recollection is what counts.

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