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If a police officer testifies under oath that a defendant said

something that was incriminating to...
If a police officer testifies under oath that a defendant said something that was incriminating to the defendant but the defendant decides not to testify to defend himself, is what the officers says the defendant said considered hearsay since it did not come directly from the defendant?
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Answered in 8 minutes by:
3/22/2013
LawHelpNow
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Category: Criminal Law
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Hello,
Can you please tell me:
(1) the state or federal jurisdiction (Court) in which this took place;
(2) the purpose for which the statement was introduced into evidence.
Thanks!
Ben, J.D.
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Customer reply replied 4 years ago


This is Oklahoma.


 


This is a negligent vehicular homicide case. The officer who got the defendant to make statement at the scene of the accident was being questioned. This same officer months later when pd recieved bloodtest results, went to defendants home and asked him to step outside to answer a few questions. The blood test showed positive forvery low level of thc and officer wanted to know when he smoked mj. The defendant first said, according to officer's his testimony, that the defendant first said the night before the accident but when he was told the pd had accurate test that could tell them the time, the defendant said the morning of the accident (which occurred around 6pm).


 


So this testimony was critical in the conviction of this case. The prosecution was trying to link the smoking of mj to the defendant falling asleep at the wheel. (In written statement defendant said because of heat he must have dozed off)


 


The case is now on appeal and just wondering the the appeal court judges will view that testimony. The appeal defense attorney did not use that as a proposition of error. The defendants marinda rights were not read to him before his written statement or the oral statement at his home. Again the defense attorney did not use that as a propostion of error.


 


 

Hello again,


My name isXXXXX'm a licensed attorney. Glad to try and help out.

Yes, the scenario you've described would indeed constitute hearsay. The law provides the definition in Oklahoma Evidence Code § 2801 and then goes on to codify the "Rule Against Hearsay" in § 2802. However, just as with the Constitutional prohibition of warrantless searches and seizures (for example), there are numerous exceptions codified at § 2803 et seq. All of this can be read here: Oklahoma Evidence Code. This is the tricky aspect of evidence law. It very often comes down to a matter of, "Yes, such and such statement is hearsay, but so what?" What I mean by that is the fact that a statement constitutes hearsay, which most do in fact, does not for a minute halt the analysis at that point.

If you have a follow-up question or need clarification, please just say the word by using "reply" to reach me.


I truly hope all works out for you.


Take care,


Ben, J.D.

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Customer reply replied 4 years ago


What do you think about the fact that the officer did not read defendant his miranda rights at the scene or when he came to defendant's home later?


The defendant requested both the trial attorney and appeal attorney to use that to keep the testimony out but they would not.

Hello again,


Thanks for writing back..great to hear from you!


Frankly, it's difficult to overstate the importance of the failure to advise the defendant of his Miranda rights. It's an absolutely hugely relevant issue, fatal to the prosecution, and an end to the case against the defendant. It's just that huge of an issue, utterly foundational and of Constitutional proportions. It really doesn't get much more serious than this, to be honest.

Kind regards,


Ben, J.D.

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Customer reply replied 4 years ago


So since the defendant's trial or appeal lawyer did not use this to their advantage( They possibly wanted to use the officers testimony to show the defendant was not intoxicated), will the appeal judges or staff pick this up as plain error?

 

I will add that both of the defense attorneys are with the Oklahoma indigent defense system and they have a very big work load and a recent news report indicated the department will be getting less money this year and the staff will be reduced further.)

Hello there,

I'm glad to hazard a guess, but please that's exactly what it is, meaning I don't know the mind of the reviewing Court and so forth. But, yes, in my view I can't really think of how this wouldn't be deemed as plain error. I am just rather shocked this wasn't picked up before now, but whatever the case I can't imagine it being other than being regarded as plainly erroneous based upon your description.

Best regards,


Ben, J.D.

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Customer reply replied 4 years ago


Both defense attorneys used the excuse that he was not in custody when he was questioned. But the fact is the defendant was not aware he could refuse to answer questions, so wouldn't this be custodial custody ?

Hello again,
Yes, indeed, I agree with you -- and I believe the law supports your position.
Take care,
Ben, J.D.
LawHelpNow
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Customer reply replied 4 years ago


You seem to have experience with appeal court issues. Did your experience come from being an appeal attorney or an attorney in the appeal court itself like a briefer?


 


Also do the briefers read through the transcripts looking specifically for constitutional violations?


 


Also since the miranda rights is a constitutional issue, if the Court affirms the conviction wouldn't this give the defendant a right to appeal to a higher court?

Hi again,
Thank you so much for the kindness of your favorable rating, which I greatly appreciate!
Yes, I do have substantive experience with both litigation and appellate law. You can always reach me directly by typing any new question in the text box here (left side of web page, in the dialog box, "Ask A Question..."):
LawHelpNow
It's been a pleasure interacting with you, and I appreciate your understanding in opening a new thread for a new question, if desired.
Take care and enjoy the rest of your weekend!
Ben, J.D.
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Hello,

I enjoyed working with you recently.

How are things going?

Is there anything else I can do to help?

Please just let me know.

Thanks!

Ben, J.D.
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