Section 16.2 Criminal Cases

• Library: Evidence 2017

B. (§16.2) Criminal Cases

In general, the rules of admission are consistent between civil and criminal cases. There are no separate federal rules of civil evidence, for example. See the citation of cases defining “hearsay” as collected in 33 William A. Schroeder, Missouri Practice, Courtroom Handbook On Missouri Evidence § 800.1 (2016). Criminal defendants, however, have certain constitutional and procedural rights that prohibit the admission of hearsay regardless of the rules of evidence.

The Sixth Amendment to the U.S. Constitution guarantees that in criminal cases “the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Due Process Clause extends this federal right to the states. Pointer v. Tex., 380 U.S. 400, 403 (1965). See also article I, § 18(a), of the Missouri Constitution, declaring that a criminal defendant has the right “to meet the witnesses against him face to face.”

The U.S. Supreme Court clarified that evidence that was admissible under an exception to the hearsay rule may violate the defendant’s constitutional right to confront the witness against him or her. See Crawford v. Wash., 541 U.S. 36, 56, 59–60, 68 (2004). Thus, the constitutional provision may prevent the evidence from being admitted in a criminal trial although it qualifies as an exception to the hearsay rule. It is extremely important for the practitioner in a criminal case to make both a hearsay and a Confrontation Clause objection each time the evidence is presented, or the objection not made may result in a waiver of the challenge on appeal. State v. Mead, 105 S.W.3d 552 (Mo. App. W.D. 2003); State v. Hobbs, 106 S.W.3d 498, 506 (Mo. App. W.D. 2003).

The first question to resolve in a constitutional challenge is whether the witness is “unavailable” and not subject to cross-examination at trial. And, in reviewing the exceptions to the hearsay rule, the presence of the declarant in the courtroom may mean the statement is “not hearsay” or qualifies as an exception to the hearsay rule.

This usually involves the physical absence of the witness. But a witness who appears in the courtroom may be unavailable because of other reasons. See Loeblein v. Dormire, 229 F.3d 724, 729 (8^th Cir. 2000) (a witness diagnosed with a multiple personality disorder testified under the primary personality, and there was a “full” opportunity...