911, What’s Your Emergency?

Foghorn Leghorn sure is getting his beard in a tizzy about the State’s Motion to Admit Cindy Anthony’s 911 Calls.

• Defense Reply to State Motion to Admit 911 Calls

And while I don’t fault the defense for trying to exclude the 911 tapes, their lack of foresight just highlights the Casey Anthony defense team’s continuing weakness – too much energy focused on losing battles (but then again, with five pro-bono attorneys, a legal clinic, and endless time on their hands, what’s a little wasted energy.)

But more importantly, they just don’t seem to understand the true evidentiary value the 911 calls provide to the State or the legal basis by which the State  is seeking the 911 calls’ admission.

Instead the defense rests their entire evidentiary objection to the admission of the 911 calls on “hearsay.” An unimaginative and shallow objection under the procedural nature and facts of this case.

Hearsay, Schmearsay

In laymen’s terms, hearsay is a statement made by a third-party and offered as substantive evidence in a judicial proceeding. (Think of person X testifying that he “heard” person Y “say” something.)

In lawmen’s terms, Hearsay is defined as an out of court statement “offered in evidence to prove the truth of the matter asserted.”

An example of hearsay testimony would be Tom testifying that Susan said defendant X admitted to the murder.

In this example, Tom obviously has no firsthand knowledge of what defendant X said. And even though Tom testified at trial, it is almost impossible to establish the reliability of Susan’s statement or to cross-examine her.

Thus the inherent unreliability of Susan’s statements makes what she told Tom inadmissible.

So allowing into evidence the statement’s of a non-testifying third party has obvious concerns – namely inability to confront the person who made the unfavorable statement about defendant X.

And because Hearsay was traditionally unreliable, the courts formulated the Hearsay Rule – which states “hearsay evidence is inadmissible.”

But Cindy Anthony is Testifying!

Yes, yes Cindy Anthony is testifying. But the 911 statements are still Hearsay – confused? Please bear with me.

When someone introduces a statement of a third-party, whether it is a written statement, a recorded statement, or a verbal recount of what the third-person said – the statement is still hearsay. Because the medium (writing, recording, orally) is being used to introduce the third-party’s statement.

And in America, a criminal trial by affidavit is unconstitutional. If a person has first-hand testimony to offer, they need to come into court and be subjected to cross-examination.

So if the 911 recordings are introduced to prove what Cindy Anthony said, they are hearsay. As the only admissible evidence to prove what Cindy said would be for Cindy Anthony to come into court and simply testify to what she saw, heard, or did.

And assuming Cindy Anthony is first called to testify by the State, she is free – and expected – to testify to the same statements that she made on the 911 calls. And under this ideal scenario the introduction of the 911 calls would be repetitive and cumulative to her “in court testimony.”

This is because the 911 calls are literally out-of-court statements being offered by the State for the sole purpose of proving the truth of what Cindy Anthony would “truthfully” assert in trial; and such statements are inadmissible hearsay – Right?

Wrong? What if there were another legal reason the State wanted to introduce the 911 recordings…

For every rule, there is an exception (or 24)

Conveniently, Florida has adopted 24 exceptions to the hearsay rule (actually, they don’t even call them exceptions – us lawyerly types simply refer to them as non-hearsay; go figure).

The theory behind these exceptions is that they have some type of inherent reliability, meaning they were made under specific circumstances where a person would have little opportunity to fabricate or exaggerate the statements (think death-bed confession).

Of these 24 exceptions, the State has implied they will possibly rely on three specific exceptions to get the statements in:

1. Spontaneous Statement: A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
2. Excited Utterance: a statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
3. Then Existing Mental, Emotional, or Physical Condition: A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: (1) Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. or (2) Prove or explain acts of subsequent conduct of the declarant.

And then there is Not-Hearsay

We have talked about hearsay and we have talked about non-hearsay, now it is time to talk about not-hearsay?

Not-Hearsay? Isn’t that the same as non-hearsay?

Nope.

You see, non-hearsay is a circumstance where hearsay is not treated as hearsay based upon a legislatively justified circumstance of reliability.

On the other hand, not-hearsay is literally not hearsay – it is a statement that does not meet the hearsay definition.

And under the hearsay rule, a statement that is not hearsay is admissible unless excluded for some other evidentiary reason (relevance, cumulative, overly-prejudicial).

For example, let’s say there was a trial about the chicken crossing the road. The chicken testified that she crossed the road because Foghorn Leghorn told her there was chicken feed on the other side. But once on the other side, there was in fact no chicken feed!

Under this scenario, the Chicken was testifying to what Foghorn Leghorn told her – isn’t this hearsay? Well the statements of Foghorn Leghorn are not hearsay for two reasons.

1. The statement attributed to Foghorn Leghorn was not being introduced to prove the “truth of the matter asserted” (i.e. that there was chicken feed on the other side), instead the statement was being introduced to explain why the poor chicken crossed the road (i.e. she “thought” there was chicken feed on the other side).
2. The statement attributed to Foghorn Leghorn was simply not true - meaning the statement was not being used to prove there was chicken feed on the other side, rather the statement was being offered to show that Foghorn Leghorn lied about the chicken feed.

Applying the Hearsay law to the 911 Calls

Much of the State and Defense arguments have focused on whether Cindy Anthony’s 911 calls fall under one of the non-hearsay exceptions; such as Excited Utterance, Spontaneous Statement, etc.

However, the reason the State has indicated they wish to introduce the 911 calls is to show the context in which Casey Anthony made up her Zenaida Gonzalez kidnapping story; not to prove that anything that Cindy Anthony said to 911 was true.

And the State has gone so far as to specifically indicate they are only looking to introduce two of Cindy Anthony’s three 911 calls – the two 911 calls that Cindy Anthony made in Casey Anthony’s presence.

So the State is not offering the statements to prove that Casey’s car actually smelled like a dead body (but if denied, Cindy could still be impeached with the 911 call on this issue alone), or that Caylee was actually missing for 31 days, or that Casey actually stole the car – rather the primary reason for introducing the 911 calls is to show the circumstances in which Casey Anthony made up the kidnapping story to the 911 operator – to provide context to her lies.

And unfortunately for the defense, a similar circumstance was allowed by the Florida Supreme Court as recently as this year in McWatters v. State. In that case, the court upheld the introduction of a taped interview of  the defendant which included statements attributed to third party witnesses which implicated the defendant – those third party witnesses did not testify.

The court said that the statements of the third party witnesses were not being offered to prove that they could actually implicate the defendant, rather the statements were being offered to provide context to the defendant’s subsequent incriminating statements when confronted with the third party claims. Thus the way in which they were being offered was not hearsay at all.

And it appears to me that this is precisely why the State wishes the jury to hear the 911 calls – so that the jury has a full appreciation of  the circumstances under which Casey Anthony made up the ridiculous Zenaida Gonzalez story.

And because this is such an important issue, Judge Perry is likely to allow the 911 calls to be introduced because they are not hearsay – regardless of whether they are non-hearsay!

Understand? Good because I will not even bother discussing the fact that if they were considered non-hearsay, the introduction of them would be considered harmless error since Cindy Anthony is testifying at trial and the defense would have a full opportunity to cross-examine her on any “lies” she made to 911.