Trials are conducted according to certain rules. One of the rules relates to what evidence can come before a fact finder who is either a judge or a jury. So I’ll talk about the rules as they relate to a jury. Although they are the same as the rules under which a judge operates it is presumed a judge who sits on a case knows the rules of evidence and if inadmissible evidence came in before him then he would not have considered it in making his ruling..
The rules relating to evidence are relatively simple for the most part. Any evidence to be heard by a jury by a jury must be relevant and material (which pretty much is the same thing) to the issue being tried and must be reliable or trustworthy. A person can testify as to what he knows from firsthand experience as for example what he saw happen; the person if not an expert cannot testify to a conclusion from his observations. A simple example is a witness cannot say a car was speeding down the road since that’s conclusory; the witness, if a driver, can estimate the speed of the car. It is up to the jury to decide if that amounted to speeding.
There are other rules that prevent the trial lawyer who presents the witness from testifying through the witness which is called asking leading questions. A lawyer can’t ask his witness “did you see Mr. Red using a .45 caliber pistol shoot Mr. Blue?” He can ask “what did you see Mr. Red do?”
It sounds relatively simple and it is. But lawyers being lawyer like to complicate simple matters. Have you tried to buy a house recently? When I bought my first house it involved about three or four pieces of paper, a deed, a note and a one or two page mortgage; now it amounts to many thousands of pages that do the same thing as the papers I used.
The evidence I’m going to talk about is in the context of the Aaron Hernandez case. I read with interest a March 18 story in The Boston Globe
Hernandez’s lawyers are asking Judge Garsh not to admit into evidence calls made by Hernandez from the jail. Judge Garsh who is in the habit of keeping the prosecutor from putting in incriminating evidence as is shown by a partial list here will decide whether the jury can hear the calls.
Now get this, the article states the lawyers say this: “The telephone calls are irrelevant, prejudicial, and constitute inadmissible hearsay that does not fall within any relevant hearsay exception.” Three things are combined in this objection: first the conversations are prejudicial, next they are irrelevant, and the other that they are hearsay.
The conversations are spelled out in the article. They are conversations Hernandez had with people outside the jail that Hernandez knew were being recorded.
Hearsay as you know are statements made outside the courtroom that are being offered for the jury to believe they are true. There are many exceptions to the hearsay rule. One is that a statement by a defendant outside the courtroom that is a confession or admission is admissible. Why is that? It is because of the common belief it is reliable evidence. Because people do not normally make statements against one’s own interest that when they do then it is something that can be believed. If I say I heard Bill Blue say Ray Red shot him that would not be admissible. Bill Blue could be saying that for any one of hundreds of reasons. If I say I heard Ray Red say he shot Bill Blue that would be admissible. We figure he would not incriminate himself in another’s crime.
The question Judge Garsh must decide is whether anything said in the conversation between Hernandez and others amounts to an admission of some involvement in the crime charged. If it is prejudicial, as his lawyers have stated, then it would be an admission against his interest and should be admitted if it is relevant.
Which brings me to the idea of “prejudicial.” I’ve read that term being bandied about in this and other trials. It has no place in the rules of evidence. The Commonwealth through its prosecutors must introduce evidence that is prejudicial to the defendant if it is to get a conviction. If a prosecutor shows the bullet lodged in the head of the victim comes from the handgun owned by the defendant that is prejudicial to the defendant. It adds to the proof against him and thus prejudices him in the eyes of the jury.
The judge should overrule the defendant’s objection based on hearsay and prejudice because if it is prejudicial it is an admission. If it is an admission, then the judge must decided if it is relevant. Reading the conversation I would find they have little in relevance to the crime charged. I’m not sure that they show other than that Hernandez is in jail and is concerned sometimes in a sinister way about others on the outside. How that goes to showing he was involved in the Llyod murder is a mystery to me. How they are even prejudicial is also a mystery. I’m wondering why defense counsel even raised that argument. Sometimes less is better than more; rather than the shotgun exception defense should have stuck with irrelevance.