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THE ADMISSIBILITY OF HEARSAY STATEMENT IN CRIMINAL CASES - MN Bench Book - Trial Procedures & Practices for Judges
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THE ADMISSIBILITY OF HEARSAY STATEMENT IN CRIMINAL CASES

From MN Bench Book - Trial Procedures & Practices for Judges

ADMISSIBILITY OF HEARSAY IN A CRIMINAL CASE

Hearsay statements are admissible in a criminal case if:

  1. The statement falls within one of exceptions to the hearsay rule(s) stated in the rules of evidence of the jurisdiction the criminal case is being prosecuted in, and
  2. The defendant has had an opportunity to confront the declarant of the hearsay statement in a prior hearing if the hearsay is determined to be testimonial in nature.
  3. If the court determines that the hearsay statement, falling within one of the exceptions to the hearsay rule, is not testimonial (see below) the statement will be admissible, even if the defendant did not have a prior opportunity to cross examine the declarant.

See the graphical chart at the end of this entry to see an analysis tree for deciding if a prior statement by someone other than the defendant is admissibile in a criminal case.

When hearsay is offered against a defendant in a criminal case and the court has ruled that the hearsay is admissible as a matter of evidentiary law (because of an exception to the hearsay exclusionary rule), a further inquiry is required because the hearsay must also be admissible in light of the confrontation clauses of state and federal constitutions. Note that the constitutional confrontation issue only arises after the court has determined that the hearsay is admissible because it fits an established hearsay exception.

If the hearsay statement offered against a defendant in a criminal case is determined to be "testimonial" as defined by Crawford v. Washington,[1] then, even though that hearsay statement fits a hearsay exception, it can not (as a matter of constitutional law) be admitted unless the hearsay declarant is unavailable AND the defendant had an opportunity to cross-examine the statement when made.

A statement is testimonial if:

  1. The circumstances objectively indicate that there is no ongoing emergency that the declarant is involved in, [2], and
  2. The primary purpose of the interrogation by a law enforcement official is to establish or prove past events potentially relevant to later criminal prosecution. [3]

Note: The analysis is from declarants’s perspective. Would the declarant reasonably expect that their statement is sought or given for use in future trial or prosecution?

A statement is non-testimonial if: A law enforcement official is investigating or responding to an ongoing or recently completed emergency and the statement obtained to aid in the response to and the elimination of an ongoing emergency.[4] This is a dispositive test, and these are the only circumstances under which a statement that is an exception to the Hearsay rule is admissible against a defendant in a criminal case.

If the hearsay is deemed not to be testimonial, no constitutional inquiry need be made.

Admissibility of Forensic Documents- Notice and Demand Statutes In many prosecutions the state offers forensic reports to prove one or more elements of the case. Frequently, the person who prepared the report is not present to testify and be subject to cross examination. In Melendez-Diaz v. Massachusetts[5] the US Supreme Court held that such documents are testimonial because they were prepared in anticipation for their introduction at trial. Consequently, absent the presence in court of the person who prepared the document, the document is not admissible. The court in Melendez-Diaz went on to discuss "notice and demand" statutes that many states have adopted to address this issue and the significant demand on resources that occur when forensic scientists have to leave the laboratory and go to court to testify. The court, while not addressing the adequacy of such statutes, implied that they might pass constitutional muster. The statutes involved allow the state to serve notice on a defendant that it intends to offer into evidence an analyst's report without calling the analyst to testify. After receiving such notice the burden is on the defendant to demand the presence of the analyst at trial. Absent such demand the report is admitted even without the defendant being able to cross examine the analyst. Minnesota has such a statute, Minn. Stat. Ann. 634.15. https://www.revisor.mn.gov/statutes/?id=634.15 This statute, amended in 2007, was held to constitutional in State v. Smith [6]. In State v. Gai [7] the court held that in the absence of a demand for the analyst,a forensic report is admissible however the defendant can still challenge the accuracy of the report.

Two collateral considerations: Waiver and Forfeiture of constitutional rights

Waiver: A defendant may waive his confrontation rights by placing, on the record, a knowing, intelligent and voluntary waiver of those rights. Once the state served notice on the defendant, through his attorney that it intends to introduce the testimony of a forensic analyst through a report without the presence of the analyst, such report will be admissibile without the presence of the analyst who prepared the report unless their is a demand for the presence of the analyst made by the defendant's attorney or or the defendant.

DEFENSE ATTORNEY'S WAIVER OF DEFENDANT'S RIGHT TO PRESENCE OF ANALYST, The defendant's personal waiver of the presence of the analyst is not necessary nor does such absence raise any constitutional issues. Defense Counsel's waiver of 6th Amendments confrontation challenges to evidence are effective even when the trial judge doesn't personally address the defendant and obtain his waiver. Even before Crawford, an attorney could waive his client's 6th amendments rights by stipulating to the admission of evidence.[8].

Forfeiture: defendant may forfeit his confrontation rights by engaging in conduct that makes a witness unavailable, provided the government proves that the defendant acted with the specific intent to make that witness unavailable. The defendant must render a witness unavailable. It is not sufficient that the defendant makes a person unavailable to be a witness, in the vague sense that the person is no longer around to choose to testify. The person whose unavailability the defendant intentionally procured must already be a witness, as that term is understood in Crawford.[9] There is no “forfieture by murder exception” to the sixth amendment confrontation right. However, if the defendant murders the declarant before trial and there is evidence to establish that the murder was committed to prevent the declarant from testifying the defendant will be deemed to have forfeited his right to confront the declarant.


Special Note: forfeiture is not a hearsay exception. The question of forfeiture is not reached unless the court first determines that there is an applicable hearsay exception. The Federal Rules of Evidence may have incorporated forfeiture as a hearsay exception, F.R. Ev. 804(b)(6), but unless state law explicitly recognizes forfeiture as a hearsay exception, then forfeiture remains solely a constitutional consideration that is not reached unless some other hearsay exception has been found applicable.

NEW CRAWFORD GRAPHICAL DISPLAY 15 4 9.png


  1. 541 U.S.36(2004)
  2. Davis v. Washington,547 U.S.813 (2006),Michigan v. Bryant 361 U.S. 935,(2011)
  3. Id.
  4. Id.
  5. 557 U.S. 308 (2009)
  6. Minn. Ct. App. A10-1293, 2011
  7. Mont., No. DA 12-0095 (10-23-12)
  8. United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. 2010)
  9. Giles v. California 128 S. Ct. 2678 (2008)